ABBAS (Migration)

[2021] AATA 1811

ABBAS (Migration) [2021] AATA 1811 (17 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zeeshan Abbas

CASE NUMBER:  1914326

HOME AFFAIRS REFERENCE(S):          BCC2019/1290439

MEMBER:Frank Russo

DATE:17 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 17 May 2021 at 5:39pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Diploma of Community Services – Advanced Diploma of Community Sector Management – value of course to applicant’s future – proposed change in career – genuine interest to further career through vocational study – intention to comply with visa conditions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.611

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 21 May 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 March 2019. 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 (the Regulations) because he delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant appeared before the Tribunal by telephone on 17 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Natalia Bezuglova, international student and business advisor at SGSCC International, the applicant’s education provider.

5. The applicant was assisted in relation to the review by his registered migration agent, who is also an Australian legal practitioner.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 applicant for entry and stay as a student.

   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 Tribunal has had regard to the applicant’s oral evidence given at the hearing, the contents of the Department’s file as well as documents provided to the Tribunal by the applicant including a completed s.359(2) questionnaire and confirmation of enrolment (CoE) and numerous attachments provided with the s.359(2) response, which included evidence of previous qualifications completed in Pakistan and Australia, a submission from the applicant’s agent, character references and a letter of support, taxation records for multiple years, a student attendance report, research into salaries for care givers and child care roles and for social workers in Pakistan, as well as a letter of offer for employment with Micro Options Support Programs in Pakistan.

12. The applicant is a 34-year-old national of Pakistan. He first arrived in Australia on 1 November 2012, holding a Student visa. The Student visa application under review was in respect of the applicant’s enrolments in a Diploma of Community Services and an Advanced Diploma of Community Sector Management. At the time of the hearing the applicant’s enrolment in the Advanced Diploma had been cancelled and the applicant was scheduled to complete the Diploma course on 2 April 2021.

13. The applicant gave evidence at the hearing that when he commenced the Diploma of Community Services it was a one-year course and the Advanced Diploma to follow was also a one-year course, however when he was about to complete the Diploma his education provider became accredited and this resulted in the length of the Diploma course being increased from one year to two years and an additional 400 hours of work placement being required.

14. At the time of the hearing the applicant had only one course unit and 200 hours of work placement to complete in order to obtain the Diploma of Community Services. He stated that his plan after completing this course was to return to Pakistan, where he would first take a break and then see what opportunities he would take up. He stated that he might join a company his cousin was running (Micro Options Support Programs) or he might look at other opportunities. He stated that he was not intending to proceed with the Advanced Diploma of Community Services, and stated that although he was originally enrolled in this course as part of a package course, he was happy to return to his home country with the Diploma of Community Services.

15. Following the hearing the applicant provided the Tribunal with a letter of offer and confirmation of enrolment (CoE) for the Advanced Diploma of Community Sector Management at SGSCC International, commencing on 12 July 2021 and ending on 15 July 2022. In an email forwarding these attachments, dated 6 May 2021, the applicant’s representative submitted that the applicant had completed the qualification he was enrolled in at the time of the hearing, and that his intention was to return to Pakistan following the completion of the Diploma of Community Services, but having reviewed the current situation in Pakistan regarding COVID-19, he and his family agree that now is not the time for him to return to Pakistan, particularly having regard to the impracticalities of overseas travel. The applicant’s representative submitted that the applicant now has a genuine desire to stay on as a student to complete the Advanced Diploma of Community Sector Management, and that he wishes to make use his time in Australia by continuing to study, rather than remaining on a Bridging visa while waiting to return to Pakistan. The applicant’s representative also made submissions regarding the impact of a visa refusal decision on the ability of persons from Pakistan to access global mobility, and noted the applicant wished to do everything in his power to have the decision remitted prior to his return to Pakistan.

16. Having considered the evidence as a whole, as set out below, the Tribunal makes no adverse findings regarding the applicant’s desire to now re-enrol in the Advanced Diploma of Community Sector Management. The Tribunal notes that the applicant was previously enrolled in the Advanced Diploma course and has provided an explanation for why he was unable to complete the course within the timeframe originally indicated by his Student visa application, given the length and requirements of the Diploma of Community Services had changed. The Tribunal also makes no adverse findings regarding the applicant’s stated decision to remain in Australia to study for the time being, given it is likely he would otherwise need to apply for a Bridging visa to remain in Australia as a result of the current impracticalities of international travel, particularly to Pakistan. The Tribunal does not consider that the applicant has now decided to enrol in another short course unrelated to his previous studies for the purpose of extending his stay in Australia. Rather, the applicant has decided to re-enrol in a course which is the logical extension of the Diploma course which he completed in the time since applying for the Student visa.

17. At the hearing the applicant gave evidence that his plan when he first arrived in Australia was to study a Master of Professional Accounting. His qualifications from Pakistan included a Bachelor of Sociology and Journalism and a Master of Business Administration in Finance and Accounting. The applicant explained however that things didn’t turn out as he expected. He had never been away from his family and was homesick and he didn’t do as well as he had hoped with his studies. He completed half a semester of the Master of Professional Accounting. In addition, his English language skills at the time were an issue. He dropped out of the Masters course and enrolled in a Diploma of Business, which he found easier. He completed and was awarded the Diploma of Business in 2014.

18. The applicant then enrolled in an Advanced Diploma of Business, and stated that he completed half of the course when he met his future wife. The applicant stated that his priorities changed at this point as his wife had a son and he became a step-father. The applicant applied for a Partner visa on 27 August 2014. He was granted a Subclass 820 Partner visa (temporary) in March 2015. The applicant’s relationship has now ended, and his Partner visa ceased in March 2019. He stated that he applied for the Student visa under review around the same time.

19. While the applicant held the Partner visa he worked as an education officer and completed a Certificate III in Early Childhood Education and Care and a Diploma of Early Childhood Education and Care. The applicant gave evidence that these qualifications which he has previously obtained in Australia will be of little assistance to him on return in Pakistan as there are few jobs for men within the childhood care sector in Pakistan. He gave evidence that if he attempts to return to Pakistan and utilise such qualifications in the workplace it would be humiliating for him. He stated however that there are many jobs for both men and women in community care in Pakistan, and the proposed qualifications he wishes to obtain under the Student visa are ones that he would be able to use in his home country.

20. The Tribunal is satisfied that the applicant has provided reasonable motives for wishing to undertake the course of study in Australia rather than his home country, as well as why he wishes to undertake this particular field of study to improve his employment opportunities in his home country. The applicant gave evidence that following the ending of his relationship in Australia he considered returning to Pakistan with his existing qualifications that he had earned in Australia in Early Childhood Education and Care, however he considered that these qualifications would not provide him with work opportunities in Pakistan due to his gender, and he therefore wished to educate himself further prior to returning. The applicant stated that there are no equivalent courses in Pakistan which offer practical experience, and that a lot of work is still needed there within the community development field. The Tribunal accepts the applicant’s reasons for now wishing to complete the Advanced Diploma of Community Sector Management.

21. As to the value of the course, the applicant stated that he has a Bachelor of Sociology and likes to work in areas where he can help vulnerable people. He gave evidence that he had spoken to his cousin who runs the Micro Options Support Program in Pakistan, who has offered him a role in his company and told him that he should proceed with this course. He stated that development is an important issue for Pakistan and there is a need for people with skills in Community Services. He stated that with a qualification from Australia he can help the local community and he will also be in a better position to obtain jobs in Pakistan. The applicant explained that he completed the Master of Business Administration in Pakistan and enrolled in a Master of Professional Accounting because his parents wanted him to do these courses. Whereas, he enrolled in the Diploma of Community Services because it is something that he wants to do and he believes it will benefit his future.

22. The applicant gave evidence that his research indicates he could earn between $10,000 to $12,000 USD per year in Pakistan in a community development role. These figures were based on his research into various organisations and the letter of offer from his cousin. The applicant has provided evidence of the average salary for a social worker in Pakistan.

23. The Tribunal discussed the letter of offer from the applicant’s cousin’s company, and questioned whether the applicant would require his proposed qualification for such a role, when considered against his existing qualifications and experience. The applicant noted that his proposed qualification is in community development, and this is specific to the role offered within this organisation, which is a not-for-profit organisation. The applicant stated that he has previously volunteered with this organisation and indicated the Tribunal could check the genuineness of the offer.

24. As noted above, the applicant already has Bachelor and Masters level qualifications from Pakistan. While this raises potential concern that the applicant’s current studies at the vocational level may provide little value to his future when compared to his existing qualifications, the applicant has given evidence of his desire to work in the community services field in Pakistan, and of his previous Masters studies being in a field of interest to his parents. The Tribunal notes that decision makers should allow for reasonable changes to career or study pathways. The applicant has provided a reasonable explanation for his proposed change in career, as well as the reasons why he believes he needs to educate himself further prior to returning to Pakistan. The applicant has demonstrated an interest in this field through the recent work he has commenced in Australia in community care. Overall the Tribunal accepts that the course of study is relevant to the applicant’s proposed future employment plans and is likely to provide value to his future.

25. As for his personal ties to his home country, the applicant’s parents, a brother and two sisters live in Pakistan. He stated that he has another brother who lives in the UK. He stated that he has a third brother who lives in Australia, who at the time of the hearing was holding a Bridging visa. He stated that his brother arrived in Australia on a Student visa as well and arrived six or seven months after him, and that he lives with his brother. He stated that he did not know what his brother’s plans are.

26. The applicant gave evidence that he was previously married and had a step-son from this marriage, however at the time of the hearing he was single. The Tribunal is satisfied that the applicant has personal and financial ties to Pakistan which would serve as a significant incentive to return to his home country.

27. The applicant confirmed at the hearing that there are no civil or political issues that would act as an incentive for him to remain in Australia, other than the temporary situation with COVID-19, which is a global pandemic, rather than specific to Pakistan. There is no evidence of any military service requirements. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in Pakistan, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.

28. The Tribunal has considered the applicant’s potential circumstances in Australia. As noted above, one of the applicant’s brothers lives in Australia and lives with him. The Tribunal considers the presence of the applicant’s brother in Australia may act as some incentive for the applicant to remain in Australia following the completion of his current studies, and the Tribunal takes this into account in assessing his circumstances as a whole.

29. The applicant gave evidence that he has worked in the childhood education and care sector since 2014, for which he had obtained a Certificate III and Diploma. At the time of the hearing he had recently commenced a role as a community worker, which he was undertaking on a casual basis. The applicant has thus demonstrated an interest in gaining work experience relating to his proposed qualifications. He stated that he also continues to work as a child care worker. He stated that he has full work rights.

30. Having reviewed the applicant’s evidence as a whole, the Tribunal considers there is no evidence that the applicant has been attempting to build a career in community services in Australia. The applicant has provided taxation documents for several tax years, and the Tribunal does not consider that his economic circumstances are an incentive to remain in Australia.

31. The Tribunal notes that despite holding a temporary Partner visa at the time from 2015 to 2019, the applicant nevertheless enrolled in courses of study at the vocational level and completed them. During this period he completed a Certificate III and Diploma of Early Childhood Education and Care, despite there being no requirements that he be enrolled in courses of study. The Tribunal therefore considers that the applicant has demonstrated a desire to educate himself in Australia in vocational courses. The Tribunal does not consider there is sufficient evidence to indicate that the applicant has now enrolled in a series of relatively short and inexpensive courses to maintain his stay in Australia or to circumvent the intentions of the migration program. Rather, his enrolment history suggests that he has a genuine interest in further his career through vocational study.

1. As noted above, the Tribunal heard evidence from Ms Bezuglova, who is a student and also a coordinator at SGSCC. Ms Bezuglova gave evidence that when the applicant applied for his course he had a very strong statement of purpose, that he submits all assessments on time, has paid all of his fees and adheres to course requirements. She stated that she had spoken to the college’s workplace coordinator, who indicated the applicant is a brilliant student. The Tribunal has also considered the student attendance report provided for the Diploma of Community Services, which indicates that in most months the applicant’s attendance was 100%.

2. While the length of time the applicant has now remained in Australia is of some concern, having regard to the evidence as a whole, the Tribunal is satisfied that the applicant has enrolled in the Advanced Diploma of Community Sector Management for genuine reasons, rather than merely to maintain residence in Australia. While the timing of the applicant’s application for the Student visa also raises some concerns that his application was made in concert with the ending of his Partner visa, the applicant has provided a plausible explanation for why he wished to undertake further studies in Australia before returning to Pakistan.

3. There is nothing to suggest that the applicant has entered into a relationship of concern for a successful visa outcome.

4. The Tribunal makes no adverse findings regarding the applicant’s knowledge of his course of study, and notes that he has now completed the requirements for the Diploma of Community Service. The applicant was able to speak knowledgeably about his education provider, in particular the values of the founder of the college and her desire to ensure people have access to appropriate levels of care.

5. The applicant’s immigration history refers to both his travel and visa history. The applicant first arrived in Australia in November 2012. The Tribunal notes that the applicant has remained in Australia for a substantial period of time, however for the same reasons as set out above, it finds that the applicant has provided a reasonable explanation for why he now wishes to undertake his proposed study and how it relates to his proposed career plan in his home country. The applicant gave evidence that he did not wish to return to Pakistan with a visa refusal history and that this is something which has been upsetting him.

6. The applicant has not previously had a visa refused or considered for cancellation and he confirmed he had no outstanding applications for other classes of visa. The applicant has now completed the Diploma of Community Services, which formed part of the basis for his Student visa application. He is now enrolled to undertake the Advanced Diploma of Community Sector Management, which will end in July 2022. The applicant has explained the reasons for the delay in commencing the Advanced Diploma, as well as his reasons for wishing to study a further course in Australia and make good use of his time while he is waiting for the travel restrictions associated with COVID-19 to resolve. The Tribunal considers that the applicant has performed in a manner to be expected of a genuine student, and considers he should be afforded the opportunity to complete the Advanced Diploma of Community Sector Management and thereafter depart Australia as he has repeatedly stated. Overall the Tribunal considers the applicant’s immigration history raises no concerns.

7. The Tribunal has also had the benefit of the extensive written and oral submissions from the applicant’s representative, which it regards to be persuasive.

8. While the Tribunal notes that upon initial consideration of the applicant’s circumstances, there are a number of factors which may suggest that the applicant does not intend to stay in Australia temporary for the purposes of study. The Tribunal however accepts that the applicant has recently had a change in circumstances following the ending of his relationship with his former wife. While the timing of his commencement of his proposed studies suggest he has enrolled in them merely to obtain a Student visa for the purposes of maintaining his residence in Australia, the Tribunal accepts that the applicant has provided a reasonable explanation for his desire to undertake further studies which will be of value to him in his home country. The Tribunal also gives some weight to the applicant’s previous completion of vocational studies in a related field, despite this not being a condition of his Partner visa, and his progress with his studies despite the visa refusal.

9. The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.

10. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

    Does the applicant intend to comply with visa conditions?

11. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

12. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

13. The applicant has provided with his visa application an undertaking to comply with any conditions the subject of which the visa is granted. There is no evidence to demonstrate that this would not be the case, and based on the applicant’s stay in Australia to date, including his evidence of compliance with current visa conditions and his completion of the Diploma of Community Services.

14. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

15. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

16. There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern by the Tribunal that the applicant is not a genuine applicant for entry and stay as a student.

17. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

18. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

19. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    Frank Russo
    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.