AFZAAL (Migration)

[2022] AATA 1874

AFZAAL (Migration) [2022] AATA 1874 (3 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  HAMID AFZAAL

CASE NUMBER:  1837091

HOME AFFAIRS REFERENCE(S):          BCC2018/4601441

MEMBER:T. Quinn

DATE:3 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 03 February 2022 at 9:49am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment status – no response to s.359(2) invitation – PRISMS record – genuine temporary entrant – Direction No.69 – length of time onshore – changes to study and career pathways – regression in level of study – disparity in economic conditions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection [2014] FCA 915
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Tshering v Minister for Home Affairs [2019] FCCA 2667

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 (‘the delegate’) on 10 December 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 20 October 2018 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 10 December 2018, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 18 December 2018, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. Over three years have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 9 April 20220, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). This letter requested that the applicant complete and file a questionnaire about his circumstances in Australia and in his home country (‘the questionnaire’).

6. Between April and July 2020 the applicant sought five extensions of time to reply to the s359(2) letter. Despite this, to date, the applicant has still failed to complete the questionnaire or filed any meaningful submissions since making his application for review in December 2018, save for a brief email of 5 November 2021.

7. The applicant did not provide the information within the prescribed extended period or otherwise and no further extension of time was requested. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action.[1] 

   [1] Pursuant to section 359C(1) of the Act.

8. The Tribunal finds that the applicant did not provide further information as requested. In these circumstances, section 359C of the Act applies and pursuant to section 360(3) of the Act the applicant is not entitled to appear before the Tribunal. The effect of section 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[2]

   [2]           Hasran v MIAC [2010] FCAFC 40.

9. The Tribunal, therefore, has no additional information relating to the applicant’s visa application beyond that which was before the delegate in December 2018 (save for a PRISMS search and the applicant’s email of 5 November 2021 as set out below) and is otherwise discernible from the delegate’s decision and Department file.

10. The Tribunal has considered whether, in the circumstances of this case, information that the applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide relevant information already.

11. The Tribunal has given consideration to whether it should adjourn the review under section 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs[3] and Manna v Minister for Immigration and Citizenship[4] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.  It has also had regard to Minister for Immigration and Citizenship v Li[5] regarding reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[6] which considered analogous issues, as well as the decision of Kaur v Minister for Immigration and Border Protection.[7]

    [3] [2002] FCA 617.

    [4] [2001] FMCA 28.

    [5] [2013] HCA 18 (8 May 2013).

    [6] [2014] FCAFC 1 (4 February 2014).

    [7] [2014] FCA 915 (28 August 2014).

12. In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the applicant has had a fair opportunity to provide relevant information.

13. Accordingly, the Tribunal has elected not to exercise its discretion under section 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the applicant to the Department and the Tribunal.

14. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

15. The Tribunal has proceeded to a decision having had regard to all the information before it, including the information previously provided by the applicant to the Department but without taking further steps to obtain the additional information sought by this Tribunal under section 359(2) of the Act.

16. For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed in this case.  In reaching its decision, the Tribunal has had regard to:

    a.all written material filed by or on behalf of the applicant; and

    b.other relevant documents on the Tribunal and Department files.

    The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.

    STATUTORY FRAMEWORK

    Enrolment (clause 500.211)

17. Clause 500.211 relevantly requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[8] The applicant does not claim to meet any of the alternative criteria in clause 500.211 of the Regulations.

    [8]Clause 500.211(a) of Schedule 2 to the Regulations.

18. ‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[9]

    [9]Regulation 1.03 of the Regulations.

19. All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[10]  Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[11] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.

    [10]Section 10 of the ESOS Act.

    [11]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).

20. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.

21. 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?

22. In considering whether the applicant satisfies clause 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’ (‘the Direction’), made under section 499 of the Act. The Direction 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.

23. 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.

24. The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[12]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal.  The Tribunal, however, recognises that it is an independent statutory body.  It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.  In this regard, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]), wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction. Most pertinently, his Honour endorses the view espoused in those cases, that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.

    [12]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The applicant is a 34-year-old male Pakistani citizen who first commenced studying in Australia in June 2013.[13]  The applicant has remained onshore studying before holding a Temporary Graduate (VC485) visa (‘the 485) visa from 21 October 2016-21 October 2018.[14]  The applicant made the application which is the subject of this review the day before the 485 visa expired.  This timing raises concerns for the Tribunal about the true nature of the applicant’s intentions in seeking a student visa and whether he may be motivated by factors other than study including a desire to maintain residence onshore, which is in circumvention of the intentions of the migration program.

    [13]          See delegate’s decision and Department file.

    [14]See delegate’s decision.

26. Prior to coming to Australia, the applicant completed a Bachelor of Commerce in 2008 and a Master of Commerce in 2010 in Pakistan.[15]  Since his arrival in Australia he has completed an English course from June to July 2013 and a Master of Professional Accounting from March 2014-July 2016.[16]  He then undertook a professional year program while onshore on the 485 visa.[17]

    [15]        See applicant’s application at page 11 in the Department file.

    [16]          See document ID5097338 in the Department file.

    [17]See delegate’s decision.

27. The applicant’s application which is the subject of this review was to undertake a Graduate Diploma of Management (Learning) with a proposed completion date in November 2020.[18]  Due to delays in this matter coming before the Tribunal, the applicant ought now to have completed his course and returned to his home country to put into motion any future plan.  Instead, he remains onshore.  This troubles the Tribunal.

    [18]        See delegate’s decision.

28. A PRISMS search was undertaken by the Tribunal in relation to the applicant on 14 October 2021 which indicated he was not enrolled at that time and therefore did not meet the requirements of clause 500.211 of Schedule 2 of the Regulations. The Tribunal wrote to the applicant on 22 October 2021, pursuant to section 359A of the Act, explaining the contents of the PRISMS search, its relevance to his case and indicating that the information in the PRISMS search could be relied upon as the reason or part of the reason for the Tribunal affirming the decision in his case. The Tribunal invited the applicant to comment or respond to this information by 5 November 2021.

29. On 5 November 2021, the applicant emailed the Tribunal as follows:

    I am writing this email regarding my AAT review for student visa subclass 500.
    I have applied for the student visa on 20th of October 2018 which was rejected on 10th December 2018. That was quite shocking news for me because my intentions was to get the Graduate Diploma in Management because I have made a intensive research on this course how it will weigh up my previously degrees in Accounting in future jobs. After rejection of visa I was not able to think properly about my future planes.
    After sometime Covid-19 started it was quite a stress full situation for me because I wasn’t even sure about what’s happening around me. Things were getting worse every day specially for me because I lost my mom during this stressful situation and I wasn’t able to go back due to this visa rejection.

    Currently I am enrolled in Advance Diploma in Leadership and management. Attached is the CoE for the course which started on 4 of October 2021.

    It’s a humble request to department to please consider my visa application so that I can complete my studies and be able to start my career in my home country.

30. The applicant attached a fresh confirmation of enrolment to his email of 5 November 2021- this enrolment was for an entirely new course, an Advanced Diploma of Leadership and Management with course dates from October 2021-September 2022. It was created, however, on 4 November 2021 – the day before a response was due to the Tribunal’s letter in the immediately preceding paragraph. This timing raises concerns for the Tribunal – it suggests to the Tribunal that he may have recommenced study in order to ensure he meets the requirements of clause 500.211 of Schedule 2 of the Regulations and to prolong his stay in Australia.

31. This new course would take the applicant’s time onshore to over nine years. This is greatly concerning for the Tribunal. It is very difficult to reconcile the period of time the applicant has already been onshore for, over eight years, with the meaning of temporary as required by the Act and Regulations.

32. The Tribunal undertook a PRISMS search on 21 January 2022 to ascertain whether the applicant was still enrolled.  This search indicated the applicant has maintained his enrolment status since 4 November 2021.  The Tribunal has not placed any weight against the applicant in relation to the information contained in the PRISMS searches.

1. The Tribunal allows for reasonable changes to study and career pathways but is concerned by the significant downgrade this course represents from the applicant’s existing Bachelor and double Master level of education.

2. The applicant’s statement of purpose filed with the Department at the time of his application (‘the SOP’) refers to the Graduate Diploma of Management (Learning) and makes generic claims about the benefits it has to offer him in organisational learning and capability development, managerial positions and the various industries in which he could seek work.[19]  The Tribunal has considered all information before it and does not find the material persuasive in relation to the relevance of the applicant’s Advanced Diploma of Leadership and Management to the applicant’s future career or any assistance or improvement it has to offer him.  This is because the applicant’s stated future employment plans are too vague to form any firm findings in his favour and because he already holds a Bachelor and two Master qualifications such that it is difficult to conclude that a vocational level course has any benefit to offer in the context of his study history.

   [19]          See statement of purpose in the Department file.

3. The applicant has provided minimal information in relation to his community ties to Australia and has not completed the questionnaire.  The applicant has now been living in Australia for in excess of eight years, which has included considerable time working and studying onshore (and necessarily engaging in those respective communities).  The length of the applicant’s stay in Australia, for more than eight years, indicates that the applicant has a preference to remain onshore.  It is reasonable to conclude that after over eight years onshore the applicant has cultivated a satisfactory life and established strong ties to the Australian community acting as a strong incentive for him to remain onshore.  As each day passes, those ties strengthen.

4. The applicant has returned to Pakistan twice according to the evidence before the Tribunal – from 7 December 2016-21 January 2017 and 16 July 2018-30 August 2018 – both to visit his family.[20]  The Tribunal acknowledges that the COVID19 Pandemic has made international travel virtually impossible since early 2020 and does not place any weight against the applicant in relation to not travelling home since early 2020.  The applicant’s parents, two brothers and three sisters live in Pakistan.[21]  The applicant expresses distress over the loss of his mother in his email of November 2021 and the Tribunal empathizes with him in this regard.  The applicant has provided minimal information in relation to his community ties to Pakistan and has not completed the questionnaire.  The Tribunal accepts that the applicant has personal ties to Pakistan acting as an incentive for him to return but does not consider those ties are acting as a significant incentive for him to return and appear to be outweighed by his incentives and desires to remain onshore.

   [20]          See page 14 of the applicant’s application in the Department file.

   [21]          See pages 7-9 of the applicant’s application in the Department file.

5. The applicant has made extensive submissions in his SOP regarding the benefits of studying in Australia, including that ‘it is more affordable than other countries like USA and UK’, he is already comfortable with studying in Australia give his study history, that it will give him better job opportunities for a managerial position after completion of his qualification.[22]  The Tribunal considers the applicant has provided reasonable reasons for undertaking his study in Australia as opposed to his home country or region.

   [22]          See statement of purpose in the Department file.

6. The applicant has been working onshore as a self-employed uber driver since November 2017.[23]  He has not completed the questionnaire and the Tribunal therefore has limited specific information in relation to the applicant’s income and expenses in Australia and any asset holdings in Australia or Pakistan save that he has filed documents contained the Department indicating his father is financially supporting him and has the means to do so.  The Tribunal notes that the United Nations Human Development Index, which is a statistical comparison of life expectancy, education and per capita income indicators by country, ranks Pakistan as 154^th in the world as compared to Australia’s ranking of 8^th in the world.[24]  The Tribunal also notes that the applicant holds tertiary qualifications that are likely to secure him well paid work in Australia.  The Tribunal is concerned that the applicant’s economic circumstances onshore may be acting as a significant incentive for him to remain but makes no firm findings in this regard given the limits of the evidence before it. 

   [23]          See delegate’s decision and applicant’s application in the Department file.

   [24]See Table 1 of United Nations’ Human Development Report 2020 commencing at page 343 < See also: Rathor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1187 at [42]-[44].

7. There is no evidence that the applicant has had any travel, visa or immigration issues in the past.[25]  The applicant stated he does not have any potential military service obligations or political or civil unrest concerns in Pakistan.[26]

   [25]          See applicant’s application in the Department file.

   [26]          See applicant’s application in the Department file.

8. The Tribunal is very troubled by the length of time the applicant has now been onshore for. It is difficult to reconcile a period of nearly nine years with the meaning of ‘temporary’ as required by the Act and Regulations. The Tribunal considers that, on balance, the factors weighing against the applicant in this case are greater than those falling in his favour.

9. The Tribunal is concerned that the applicant is motivated by factors other than study and is using the student visa program as a means of maintaining residence in Australia.  The Tribunal cannot be satisfied on the material and evidence before it that the applicant genuinely intends to stay in Australia temporarily.

10. Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, the Tribunal cannot be satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant does not meet clause 500.212.

11. 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. Therefore, the decision under review must be affirmed.

    DECISION

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

    T. Quinn
    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.