Acharya (Migration)

Acharya (Migration) [2020] AATA 2808 (6 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sandip Acharya
CASE NUMBER:  1824910
HOME AFFAIRS REFERENCE(S):          BCC2018/3810729
MEMBER:David Thompson
DATE:6 May 2020
PLACE OF DECISION:  Perth
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 06 May 2020 at 12:25pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– reason for change in study and career pathway has been reasonably explained – strong incentives to return to Nepal –genuine applicant for entry and stay as a student–decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 August 2018 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 18 June 2018. 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 she was not satisfied that the applicant intended to stay in Australia temporarily as a student.
The applicant appeared before the Tribunal on 4 September 2019 to give evidence and present arguments.
The applicant was assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets the requirements of cl.500.212.
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.
Background
The applicant is a citizen of the Federal Democratic Republic of Nepal. He first came to Australia on 28 September 2013, as the holder of a subclass TU-573 student visa. At that time, he was enrolled in English and Diploma of Information Technology courses at Murdoch Institute of Technology, leading to a Bachelor of Science at Murdoch University. He is now pursuing hospitality studies, having enrolled in a package of courses at Stanley College consisting of Certificates III and IV in Commercial Cookery and a Diploma of Hospitality Management.
As well as having given evidence at hearing, the applicant has provided the Tribunal with numerous documents by way of evidence and submissions. Not all those documents are relevant to the issues before the Tribunal. Those that are relevant are as follows:
a.the delegate’s decision record, dated 7 August 2018;
b.a completed Request for Student Visa Information form, provided in response to a request for information issued by the Tribunal pursuant to section 359A of the Act;
c.an affidavit of support, undated, sworn by the applicant’s parents;
d.a certificate of completion issued by Stanley College to the applicant, dated 8 July 2019, certifying completion of a Certificate III in Commercial Cookery, with completion letter and academic transcript attached;
e.a letter dated 11 July 2019 from Stanley College confirm the applicant’s enrolment in Certificate III in Commercial Cookery (course dates 21 May 2018 to 17 May 2019) and Certificate IV in Commercial Cookery (course dates 20 May 2019 to 15 November 2019);
f.the applicant’s statement entitled “GTE explanation for student visa Subclass 500 refusal”;
g.a letter from the president of the Akikrit Chitwan Saving and Credit Cooperative Society Ltd dated 1 May 2016 confirming the applicant’s ownership of shares in the society and level of monthly savings;
h.a house rent agreement made 1 May 2017 between the applicant’s mother as landlord and a tenant, with respect to 2 residential flats at Kalyanpur Chitwan;
i.Confirmation of Enrolment (CoE) 9BE0BE84, in respect of the applicant’s enrolment in Diploma of Hospitality Management offered by Stanley College between 18 November 2019 and 15 May 2020;
j.a letter, undated but notarised on 20 August 2019, from the manager of Chitwan Food Mart Restaurant and Party Palace Pvt. Ltd. certifying the applicant’s father’s employment by the company as a cook;
k.CoE 9BE07027, in respect of the applicant’s enrolment in a Certificate III in Commercial Cookery offered by Stanley College between 21 May 2018 and 17 May 2019;
l.a land ownership registration certificate showing the applicant’s father as the owner of a plot of cultivated land in the Ayodhyapuri municipality of the Chitwan district;
m.a land ownership registration certificate showing the applicant’s mother as the owner of two plots of cultivated land in the Kalyanpur municipality of the Chitwan district;
n.a valuation dated 20 August 2019 of the plots of cultivated land owned by the applicant’s parents, as mentioned in paragraphs 12(l) and (m) above; and
o.CoE 9BE0B582, in respect of the applicant’s enrolment in a Certificate IV in Commercial Cookery offered by Stanley College between 20 May 2019 and 15 November 2019.
The Tribunal has considered all of those documents in reaching its decision in this case.
The Tribunal has also considered the Departmental file in relation to the applicant’s visa application. That file contains a number of documents submitted by the applicant in support of his application. Many of them are directed towards the issue of the applicant’s parents’ financial capacity, and whilst relevant need not be enumerated. Some of them are more directly relevant to the issues in this case. They are:
a.an audit report prepared by the firm of Khageswar & Associates, Registered Auditors, in respect of Alliance Hotel Pvt. Ltd as at 15 July 2017;
b.a verification of relationship certificate issued by the Shree Shivamandir Village Development Committee dated 31 March 2013, verifying the relationship between the applicant and his maternal uncle, Mr Bishnu Prasad Pandey; and
c.the applicant’s Statement of Purpose, dated 17 June 2018.
The Tribunal has considered all of the documents contained in the Department’s file, whether listed above or not.
The applicant’s circumstances in his home country
The applicant gave evidence at hearing that his family all lives in Nepal. His immediate family consists of his parents and his sister. The applicant said that he is very close them and speaks with them on an almost daily basis. The applicant also stated that, as the only son of the family, it is his responsibility to maintain and look after his parents as they get older. He said that his sister is already married and has a family of her own. The applicant stated that his family has been funding his studies in Australia, and referred in his written submissions (see paragraph 12 (a) above) to documentary evidence on the departmental file supporting this claim. The applicant submitted that this was also evidence of the closeness of his family relationships.
The applicant has been married, but gave evidence at hearing that he is now separated and that his marriage did not last long. He explained that he had entered into it at the age of 22, and that his wife had come to Australia to live with him at one stage. The applicant said that his marriage only survived that event by approximately 1 year, and that he is no longer in contact with his wife. At hearing, the applicant stated that he was not divorced, but that the process was in train and that he expected to be officially divorced shortly. The applicant stated that he has a girlfriend at home in Nepal. He did not give any details of that relationship, and the Tribunal does not give the applicant’s evidence on this point any particular weight, especially given that it is unclear how the applicant came to form this relationship given his long residence in Australia.
Turning to the issue of his economic situation in Nepal, the applicant put particular emphasis in his evidence at hearing on his relationship with his maternal uncle, Mr Bishnu Prasad Pandey. Mr Pandey (through his company Alliance Hotel Pvt Ltd) is the owner of the hotel business known as the Alliance Hotel, situated in Kathmandu. The applicant gave evidence that he had worked in the kitchens in this business before coming to Australia whilst still at school. He also gave evidence that his plan is to return to Nepal to work in that business with his uncle, initially as a chef. The applicant’s father works as a cook in a catering business, a fact attested to by the document mentioned at paragraph 12(j) above, and it was the applicant’s evidence at hearing that his father will also work in the Alliance Hotel business once the applicant returns to Nepal, if only for a few years before he reaches retirement age. The applicant gave evidence that his family is enthusiastically supportive of this plan.
On the applicant’s evidence, his only asset of his own in Nepal is an interest in the Akikrit Chitwan Saving and Credit Cooperative Society Ltd. At hearing, the applicant described this society as a “savings club”, into which members make regular deposits and through which they can access financial benefits such as low interest loans. The document mentioned at paragraph 12(g) above states that the applicant owns 50 shares at Rs. 100 each in the society, and “has monthly savings Rs. 30,568.” The applicant explained that those monthly savings are contributed by his parents. The Tribunal is prepared to accept that by reason of these contributions, the applicant has savings in Nepal. However, there is no evidence before it as to the total amount of those savings. The Tribunal does accept that the applicant’s evidence on this point supports his claim that his family is close.
The applicant also gave oral evidence that his family owns agricultural land as well as two residential properties in Nepal. The applicant has provided documentary evidence supporting this claim, and the Tribunal accepts it. These properties are owned by the applicant’s parents, and he does not appear to have any direct interest in them. However, he stated at hearing that as the only son of the family he expects to inherit them in due course.
It should be noted that the applicant, when asked about his community involvements in Nepal, mentioned his membership in the Akikrit Chitwan Saving and Credit Cooperative Society Ltd as his only such involvement.
The Tribunal asked the applicant at hearing whether he could undertake his hospitality studies in Nepal. The applicant’s response was that cooking courses do exist in that country, but that they are typically short courses lasting no more than 6 months and that they deal only with Nepalese cuisine. The applicant also stated that the facilities at the institutions offering these courses are such that there is little opportunity or scope for practical work, and that the courses are consequently heavily theoretical. He contrasted this with the courses he has undertaken in Australia, where a large range of cuisines are taught and colleges with up to date commercial kitchens teach longer, more thorough, practically based courses. The applicant stated that the qualifications he will gain in Australia are far more useful to him than the qualifications he could gain in the hospitality area in Nepal, and will place him in a far better place to contribute to his family business (or indeed to find employment, if that is what he must do). The Tribunal finds that these are reasonable motives for wishing to undertake hospitality studies in Australia.
The applicant gave evidence that he has no outstanding military service obligations in Nepal, and has no concern regarding civil or political unrest in that country. There is no evidence before the Tribunal contradicting these statements. The Tribunal accepts them and finds that these factors do not give the applicant any incentive to attempt to remain in Australia after his studies are finished.
Taking the matters discussed above together, the Tribunal finds that the applicant has strong personal ties to Nepal, and economic ties also (although these are mostly prospective). The Tribunal finds that these links and ties provide the applicant with significant incentives to return to Nepal at the end of his studies in Australia, and support the applicant’s claim that he genuinely intends to return there when he completes his studies.
The applicant’s potential circumstances in Australia
The applicant’s evidence is that he has no family members living in Australia, no community involvements in Australia, and no assets in Australia. At hearing, he gave evidence that he has some friends in this country, and that he shares a house with them, but that they are all Nepalese students who will be returning to Nepal as and when their studies finish. The Tribunal accepts this evidence, and finds that the applicant has no personal or community ties that would give him a reason to seek to stay in Australia after he finishes his studies.
The applicant does, however, have some employment history in Australia. According to his evidence, he worked as a kebab maker in an establishment known as “Nick’s Place” in Fremantle, Western Australia between October 2013 and December 2014, as a kitchen hand and then a cook at the Darbar Restaurant, a Nepalese restaurant in Fremantle, between December 2014 and February 2018. He stated that at the point where he ceased working at the Darbar Restaurant he was earning AUD52,000 per annum. By way of comparison, the applicant stated in his GTE statement that a wage of AUD1,000 to AUD1,500 per month, or AUD12,000 to AUD18,000 per annum, would be considered a very high wage in Nepal. The applicant also stated that he has not worked in Australia since then, as he is concentrating on finishing his studies. The way in which this employment history fits into the applicant’s immigration and study history will be discussed below. For present purposes, however, the Tribunal finds that the applicant’s employment history in Australia, and the difference between his earning capacity in Australia and in Nepal, gives him some economic incentive to stay in Australia at the end of his studies.
There is no evidence before the Tribunal suggesting that the applicant has entered into a relationship of concern in Australia, in the sense of a relationship contrived to obtain a better student visa outcome than might otherwise be available or likely. Nor is there any evidence before the Tribunal, other than that to be discussed below when considering the applicant’s immigration history, that he is attempting to use the student visa system to maintain residence in Australia, or to circumvent the intentions of the Australian migration programme. The Tribunal finds that these considerations weigh in the applicant’s favour. The extent to which they do so will depend on the extent to which the applicant’s immigration history suggests otherwise.
At hearing, the Tribunal asked the applicant what research he had performed before deciding to come to Australia to study. His response was that originally, the possibility had been raised by his school guidance counsellor. He had not considered it beforehand. He did not do a great deal of research into either life in Australia or courses available, but rather made the decision to apply (including the decision as to his initial course of study) in consultation with his family. However, by the time the applicant came to apply for the visa the subject of this review application he had considerable experience both living and studying in Australia, and may be taken to have been very well informed on those matters. Whilst the extent of an applicant’s researches may well be an indication of their true intentions in making a visa application, especially an initial application, in the circumstances of this case this consideration does not assist the Tribunal to reach its conclusion.
Taking all of the matters discussed above into account, the Tribunal finds that the applicant has some economic incentive to stay in Australia, but that the other matters relevant to his potential circumstances in Australia do not indicate that he has any intention to stay in this country after he has finished his studies. That economic incentive weights against the applicant’s claim to be a genuine temporary entrant, but not strongly.
The value of the applicant’s course to his future
The evidence before the Tribunal shows that the applicant completed secondary school in Nepal before coming to Australia. Although he was, upon his arrival in this country, initially enrolled in a package of courses that would have culminated in his obtaining a Bachelor’s degree, the evidence shows that that he has not at any time commenced studying at that level, but rather has studied exclusively in the VET sector and proposes to continue to do so. Further, the evidence shows that the applicant is following a clear progression of courses in the VET sector. It follows, and the Tribunal finds, that the applicant is seeking to undertake a course that is consistent with his current level of education. As the applicant has no previous post-secondary qualifications, and as the applicant’s current studies are in an area that is generally applicable in urban centres worldwide, the Tribunal finds that his current studies will assist him to obtain employment or improve his employment prospects in Nepal.

The applicant gave evidence at hearing that his intention on completing his studies is to return to Nepal and work in his uncle’s hotel business, with a view to taking a leading role in that business and expanding it. The courses of study for which he has made his visa application are clearly relevant to that plan.
The applicant does not intend to seek employment as such on his return to Nepal. Rather, as noted above, he plans to work in his uncle’s hotel business, particularly (but not necessarily exclusively) in the hotel restaurant kitchens. At hearing, he made it clear that he does not expect to be paid for his work by means of a salary as such. Instead, he sees himself working in and contributing to the growth of a family business, and his reward as flowing from the profits of that business. Unsurprisingly, he did not give evidence of the amounts involved. He did, however, give evidence that in Nepal a cook or chef could expect to earn a salary in the region of AUD1,000 to AUD1,500. He also gave evidence that a professionally qualified cook or chef (especially one with overseas qualifications) could expect to earn a salary at the top of that range, and that these salaries would be considered a very good wage in Nepal. The Tribunal takes this evidence as a guide to the income the applicant might expect to receive working in his uncle’s business. Even if a person in such a position is not paid a salary as such, it is reasonable to suppose that such amounts as he might draw from the business would be pegged to the amount he could earn as a wage earner. The applicant could clearly make a much better wage working as an employed cook or chef in Australia – even as an unqualified cook working in the Darbar Restaurant he was able, on his evidence, to earn AUD52,000 per annum. However, he would not have the satisfaction of working with his family to develop a business in which he had a stake. Nor would he be able to live with his family to defray his living costs which, the Tribunal accepts, would already be considerably lower than his living costs in Australia.
On these grounds and for these reasons, the Tribunal finds that the applicant’s courses have a real value for his future, and that this supports his claim to be a genuine temporary entrant.
The applicant’s immigration history
The applicant has resided in Australia since 28 September 2013. His immigration and study history since that date is somewhat complicated, and is tied up with his employment history in Australia. The Tribunal’s findings as to the sequence of events, as relevant to the current case, are best set out as a chronology, as follows:
a.October 2013: applicant commences Diploma of Information and Communication Technology at Murdoch International College, and starts work at Nick’s Place, Fremantle, as a kebab maker.
b.May 2014: applicant’s Diploma course ends, without applicant having completed it.
c.June 2014: applicant commences General English course.
d.September 2014: applicant completes General English course.
e.October 2014: applicant enrols again in Diploma of Information and Communication Technology.
f.December 2014: applicant enrols in package of courses at Stanley College, comprising Certificate III and IV in Commercial Cookery, and Diploma of Hospitality Management, and in a Bachelor of Business course at Elite Education Institute, scheduled to commence on July 2016.
g.December 2014: applicant ceases working at Nick’s place and commences work at Darbar Restaurant.
h.February 2015: applicant withdraws from Diploma of Information and Communication Technology course without completing it.
i.March 2015: applicant commences Certificate III in Commercial Cookery.
j.March 2016: applicant’s Certificate III in Commercial Cookery course ends, without applicant having completed it. Consequently, applicant does not commence other courses forming part of this package.
k.March 2016: applicant applies for subclass 187 (Regional Employer Nomination) visa, nominated by owner of Darbar Restaurant.
l.January 2017: applicant’s application for subclass 187 visa is refused, and applicant applies to AAT for review.
m.July 2016: applicant fails to commence Bachelor of Business studies, and his CoE is cancelled.
n.September 2017: applicant granted subclass 457 visa.
o.February 2018: applicant ceases to work at Darbar Restaurant.
p.May 2018: applicant enrols in a new package of hospitality courses at Stanley College, comprising Certificate III and IV in Commercial Cookery, and Diploma of Hospitality Management.
q.May 2018: applicant commences Certificate III in Commercial Cookery.
r.June 2018: applicant applies for subclass 500 student visa the subject of this review.
s.August 2018: applicant’s application for subclass 500 student visa refused.
t.March 2019: applicant withdraws application for review of refusal of subclass 187 visa.
u.May 2019: applicant successfully completes Certificate III in Commercial Cookery, and commences Certificate IV in Commercial Cookery.
v.November 2019: applicant completes Certificate IV in Commercial Cookery and starts Diploma of Hospitality Management.
The Tribunal asked the applicant why he decided to abandon his IT studies in favour of hospitality studies in late 2014 and early 2015. His response was that he had come to Australia effectively straight from high school in Nepal and could not cope with the Diploma course in which he had enrolled, being too far behind in the necessary preparatory work and experiencing difficulties adjusting to studying in Australia, which he found very different to studying in Nepal. Further, the choice of IT studies had been his family’s choice rather than his, and he found he had no real feeling for the area once he had started in it. He went on to say that he formed the idea of changing to hospitality studies partly because of his experience working in his uncle’s hotel business whilst still at school, and partly because he had been working in a kitchen in Australia. He discussed the idea with his family before he changed his area of study, and they supported him in doing so.
As will be apparent from the account given above, the applicant did not complete his Certificate III in Commercial Cookery on his first attempt, despite having made a positive decision to transfer to it from his course in IT. At hearing, the Tribunal asked the applicant why this was so. He replied that after he had started his Certificate III course, Nepal was struck by a disastrous earthquake, to which some of his friends lost their lives and which caused immense damage in his home area. He had been so upset by this event, and a second earthquake that followed shortly afterwards, that he had been unable to concentrate on his courses. It is a matter of public knowledge that Nepal was struck by a very severe earthquake on 25 April 2015, and another on 12 May 2015. The Tribunal accepts the applicant’s evidence in this regard.
The Tribunal notes that on the account above, the applicant made two non-student visa applications after arriving in Australia. The applicant’s evidence at hearing on these applications is that they were both made on the suggestion of and with the encouragement of his employer, the owner of the Darbar Restaurant. The first such application was for a permanent visa (subclass 187) under the Regional Sponsored Migration Scheme. The visa was refused, and the applicant sought a review of that decision from the Migration Review Tribunal. The fact that the applicant applied for a permanent visa certainly casts doubt on his claim to intend to remain in Australia temporarily, and this was put to him at hearing. His response was that the idea had been his employer’s, who was keen to secure the applicant’s services as a Nepalese cook for his Nepalese restaurant on a more full-time and permanent basis than was possible whilst the applicant was studying. The applicant stated that he had been misled as to his prospects by his employer, and that in his upset emotional state after the Nepalese earthquakes was in a state of confusion and easily led. The applicant stated, and the Tribunal accepts, that he ultimately abandoned his review application in respect of the visa application. He stated that he had done so because he had come to realise that his future was in Nepal and wanted to get his studies back on track. Consequently, he re-enrolled in hospitality courses and applied for the student visa the subject of this review application.
The applicant was granted a subclass 457 Temporary Work (Skilled) visa in September 2017. At hearing, the applicant gave evidence that he again made that application at the suggestion of his employer after his subclass 187 application was refused, and that his employer had encouraged him to do so because by this point he was a key employee at the Darbar Restaurant. He also stated that when he decided to leave the Darbar Restaurant and go back to his studies this visa was still on foot, but that he made the student visa application the subject of this review nonetheless. The applicant submitted that he had applied himself to his studies from that point, and had complete and passed all his courses to date. The evidence submitted to the Tribunal supports that submission.
The applicant’s previous visa applications discussed above would, without a cogent and persuasive explanation supported by objective evidence, be extremely strong evidence of an intention to remain in Australia permanently. However, in this case the applicant has presented such an explanation. The Tribunal accepts it, putting considerable weight on the fact that the explanation relies on objectively verifiable circumstances and on the applicant’s study history after the point at which, as he stated in evidence, he decided to put himself back on track.
The applicant has now resided in Australia for a little over 6 ½ years and, as the delegate noted and the applicant confirmed at hearing, has only spent 10 days of that time in Nepal, in early 2014. The applicant explained this by reference to the history and circumstances set out above, and gave evidence that whilst he was employed at the Darbar Restaurant his employer would not give him sufficient leave to make a further visit as he had become key to the operations of that business. The Tribunal also notes that the earthquakes mentioned above would have made travel to Nepal a difficult prospect, for a period at any rate.
The applicant’s evidence is that the only country he has visited outside of Nepal is Australia. There is no evidence to the contrary before the Tribunal, and the Tribunal accepts that this is the case. It follows that there is no evidence before the Tribunal that the applicant has breached the immigration laws of any other country, although in the circumstances that does not assist the Tribunal in reaching its decision. There is no evidence before the Tribunal that the applicant has ever been refused a visa by any country other than Australia, nor any evidence that any visa issued to him has ever been cancelled. There is no evidence before the Tribunal suggesting that the applicant has breached any condition imposed on any Australian visa he has held.
Taking all of these matters together, Tribunal finds that the applicant’s immigration and study history does not contradict his claim to be a genuine temporary entrant, and on some points provides that claim with a little support.
Conclusion
The applicant has strong incentives to return to Nepal at the end of his studies and, whilst he also has some incentives to stay in Australia, the Tribunal finds that his incentives to return to his home country considerably outweigh those to remain in Australia. Despite initial appearances, the applicant’s immigration and study history does not contradict this. 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?
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.
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).
The applicant has acknowledged in his visa application that conditions will be imposed upon his visa, and has (at least implicitly) undertaken to observe them. As was noted above, there is no evidence before the Tribunal of the applicant having breached visa conditions in the past.
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?
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)).
No other relevant matters arise for consideration on the evidence before the Tribunal.
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.
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
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.
David Thompson
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2020] AATA 2808

6 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies