Aggarwal (Migration)

[2021] AATA 4351

Aggarwal (Migration) [2021] AATA 4351 (28 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yogesh Kumar Aggarwal

CASE NUMBER:  2000066

HOME AFFAIRS REFERENCE(S):          BCC2019/4707200

MEMBER:Frank Russo

DATE:28 October 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 28 October 2021 at 3:43pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – arrival in Australia on a Tourist visa – reasonable academic progress – family ties in Australia and India – family business in India – course nearing completion – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cl 500.212

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 17 December 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 19 September 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 the 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 26 August 2021 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by his registered migration agent.

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 applicant is a 33-year-old Indian national. He first arrived in Australia holding a Tourist visa (TR-676) on 14 April 2010 and departed Australia on 14 July 2010. The applicant arrived in Australia a second time on 14 July 2016 holding a Visitor visa (subclass 600) on 21 June 2016, which was valid for three months. He then applied for a Student visa onshore, which was granted on 14 July 2016. While holding his first Student visa, the applicant completed a Certificate IV in English language, a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery, Diploma of Hospitality Management and an Advanced Diploma of Hospitality Management, the last of which he completed in September 2019.

12. The applicant lodged the Student visa under review on 19 September 2019. The Student visa application was in respect of his enrolments in a Diploma and Advanced Diploma of Leadership and Management. The applicant commenced the Diploma of Leadership and Management on 27 November 2019 and completed the course on 25 November 2020. He commenced the Advanced Diploma of Leadership and Management on 8 December 2020. At the time of the hearing he was due to complete this course by the scheduled end date of 6 December 2021.

13. In addition to the application form and copy of the delegate’s reasons for decision, the applicant provided the Tribunal with a s.359(2) response received on 14 July 2021, which included a copy of his confirmation of enrolment (CoE) for the Advanced Diploma of Leadership and Management at Gen Institute from 8 December 2020 to 6 December 2021.

14. On 10 August 2021 the applicant provided a response to the Tribunal’s hearing invitation, including the following additional documents:

    a.Submission from the applicant’s agent;

    b.Evidence of the award of the Certificate IV in EAL, Certificates III and IV in Commercial Cookery and Diploma and Advanaced Diploma of Hospitality Management by Acumen Education;

    c.Letter from Gen Institute, dated 10 March 2021, confirming the applicant’s completion of the Diploma of Leadership and Management;

    d.Letter from Gen Institute, dated 7 August 2021, confirming the applicant’s current enrolment in the Advanced Diploma of Leadership and Management; and

    e.Evidence of the applicant’s father’s ownership of 25% of a train components business and other property, including a tax return and certificates from an accountant.

15. The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

16. At the hearing, the applicant gave evidence that he enrolled in the Diploma and Advanced Diploma of Leadership and Management because he wishes to obtain more skills relating to business, which will assist him to run his father’s business, which is a steel business that manufactures railway components. When questioned what role he would have in this business, the applicant stated he would supervise the business, and following his father’s retirements, he will run it.

17. When questioned how the proposed courses of study would assist him with his future plans, the applicant merely responded that they would help him manage his father’s business. When questioned further about his plans, the applicant stated that he has not worked before in India. He stated that he intends to work in his father’s business first and ger some experience, following which he will also apply for part-time work in a restaurant to gain some experience, following which he intends to open his own restaurant. He stated that he works at Dominos here in Australia. When questioned how the proposed study will assist him to find employment or improve his employment opportunities, the applicant simply stated that it will improve his leadership and management and how to manage a business. He again stated that he works at Dominos and knows how to run the business. He stated that the Leadership and Management courses will give him more skills in how to run his father’s business. He stated that in his current role he sees situations change very fast and is aware of the absence of some skills in the managerial field, which is why he wishes to complete these courses before working in his father’s business.

18. The Tribunal put to the applicant the concern raised by the delegate, that the applicant has completed an Advanced Diploma of Hospitality Management, and whether this covers units which are covered in his proposed Leadership and Management courses. The applicant stated that there are some similar units between the two courses, but the Advanced Diploma of Leadership and Management is focused on how to run a business, and therefore will give him skills in managing staff and a business.

19. The applicant confirmed that he has worked as a driver and manager at Dominos Pizza since August 2016, that he works about 17 to 20 hours per week and earns about $23,000 per year.

20. As to why he has chosen to study the proposed courses in Australia rather than India, the applicant stated that it is good studying in Australia, and that he did not like studying in India.

21. The applicant is currently enrolled in Gen Institute. He gave evidence that he searched colleges online and found this college has good ratings. He stated that he saw reviews which indicate the college is good in Leadership and Management. The applicant gave evidence that he is currently studying a unit on managing finances, after which he will have three units to complete, which he stated are develop a marketing plan, provide leadership across an organisation and manage innovation and continuous development.

22. The applicant confirmed that he no qualifications from his home country, other than completing Year 11 high school.

23. As to his personal circumstances, the applicant confirmed his only family members in India are his parents, who are aged 62 and 64. He gave evidence that he is not in a relationship. He has returned to India on one occasion, in 2019, when he returned for 34 days because his mother was unwell. The applicant confirmed that he has two brothers in Australia, both of whom are Australian citizens. He stated that both are married, and one became a citizen in 2005, the other in 2009. He stated that he does not live with either of his brothers, but lives in share accommodation.

24. The Tribunal put to the applicant a concern that the presence of his brothers in Australia may act as an incentive for him to remain following completion of his proposed studies. The applicant responded that both of his brothers are married and busy with their lives, whereas he has greater ties to his parents and intends to return to India to care for him. He stated that in addition his father intends to retire in a few years, and he intends to join his father’s business. The applicant confirmed that he has no assets of his own, however his father owns 25% of his railway parts business, as well as a home.

25. The Tribunal also put to the applicant concern that in his s.359(2) response, he states that his plans are to return to India to find work in ‘top notch’ hotels and restaurants, and therefor he will need to learn practical aspects of hospitality management first. The Tribunal put to the applicant that there is little in his s.359(2) response to indicate why he would need to undertake a Leadership and Management course, which raises concerns that he has enrolled in another vocational course to extend his stay in Australia. The applicant reiterated that his plans are to first of all join his father’s business, then take a part-time job in a restaurant as a chef and gain some experience in the hospitality industry in India, and once he sees how he goes with such a job, he will but a restaurant and run it. The Tribunal also raised concern that the applicant’s evidence is his father owns 25% of the railway parts business, and therefore questioned the basis on which the applicant believes he will run this business in the future. The applicant stated that he enrolled in the Leadership and Management courses so he can obtain more skills to join this business.

26. The applicant confirmed that he has previously held one Student visa an that he has not previously had a visa application refused or a visa considered for cancellation. He gave evidence that he has complied with the conditions of his Australian visas.

    Findings regarding factors set out in Direction No.69

27. The Tribunal turns to considering the evidence and the matters set out in Ministerial Direction No. 69. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account all the relevant information, the Tribunal is satisfied that on this occasion the applicant meets the genuine temporary entrant criterion.

28. Insofar as the applicant’s circumstances in his home country are concerned, the Tribunal accepts that the applicant has family and potential financial ties to his home country which may operate as an incentive to return to India at the conclusion of the proposed study. The applicant’s parents remain in India, and the applicant has given reasons why he has responsibilities to return to India to one day care for his parents, who are approaching retirement age, and to take over his father’s business interests. While the Tribunal has concerns that the presence of the applicant’s two brothers in Australia may act as an incentive for him to remain in Australia, and addresses this further below, it considers the applicant has provided a reasonable explanation for why he will need to return to India, relating in particular to his father’s business, given his brothers have established their lives in Australia. The Tribunal accepts that the applicant returned to India for over one month in 2019 due to the illness of his mother, and accepts that he wished to return more regularly since then, but has been unable to do so because of restrictions associated with the COVID-19 pandemic.

29. As to his economic circumstances, the applicant claims he intends to return to India to work in his father’s railway components business, and that he will manage his father’s share of the business once his father retires. The applicant has provided evidence of his father’s ownership of a share in this business. He claims that he also intends to later find work in a restaurant in India and gain experience as a chef, after which he will purchase a restaurant. The applicant does not have any existing employment history in India. In Australia he has worked as a driver and manager at Dominos Pizza since August 2016. While his employment at Dominos has been stable and for a relatively lengthy period of time, the Tribunal also takes into account the applicant’s annual salary of $23,500, which barely covers his living expenses in Australia. Given the evidence of the applicant’s father’s business operations and the applicant’s stated plans to work in this business, the Tribunal on this occasion makes no adverse findings regarding the applicant’s economic circumstances.

30. 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. There is no evidence of any military service requirements. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in India, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.

31. The Tribunal has considered the applicant’s stated reasons for wishing to study in Australia, rather than India. The Tribunal did not find the applicant’s response to be particularly compelling, but accepts that the applicant has completed studies in India only to Year 11, and therefore may be in a better position to progress academically by undertaking vocational courses in Australia. The Tribunal makes no adverse findings in regards to this factor.

32. As for his potential circumstances in Australia, the applicant first arrived in Australia holding a Tourist visa in 2009 and remained in Australia for three months on that occasion. He returned on 21 June 2016, holding a Visitor visa and was subsequently granted a Student visa until 22 September 2019, which he was granted onshore. He applied for the Student visa under review on 19 September 2019. While holding his first Student visa, the applicant completed vocational courses leading to an Advanced Diploma of Hospitality Management. The Student visa application under review was in respect of the applicant’s enrolments in a Diploma of Leadership and Management, which the applicant completed as per the scheduled end date, on 15 November 2020, and an Advanced Diploma of Leadership and Management, which the applicant is on schedule to complete by 6 December 2021.

33. Although the applicant’s enrolment in a second package course at the vocational level was of some concern to the delegate, the Tribunal notes that the applicant has completed, or is in the process of completing, all of the courses he has enrolled in and has previously held only one Student visa. The applicant has provided reasons for wishing to undertake the Advanced Diploma of Leadership and Management, which include to assist him in managing his father’s share of his railway components business in India.

34. There is no evidence to suggest the applicant is in a relationship and nothing to suggest he has entered a relationship of concern for a successful Student visa outcome. The applicant has been employed at Dominos Pizza since August 2016, and his continued employment there may be an incentive for him to remain in Australia. However, the Tribunal also notes the applicant’s salary barely covers his living expenses in Australia, and therefore only gives this some weight in considering the applicant’s circumstances as a whole.

35. The applicant’s two brothers live in Australia and on the applicant’s evidence, they are Australian citizens. The applicant claims that they are both married and have lives of their own, and therefore their presence will not act as a significant incentive. The Tribunal has considered this claim, however it considers the presence of the applicant’s brothers in Australia may present as a strong incentive for the applicant to remain in Australia, and has considered this in weighing up the applicant’s circumstances as a whole.

36. Given the evidence as a whole, including a consideration of the applicant’s immigration history and the evidence of his future plans, the Tribunal considers there is insufficient evidence to indicate that at present the Student visa is being used to maintain ongoing residence or to circumvent the intentions of the migration program. The Tribunal notes that the applicant now has approximately five weeks before he completes the Advanced Diploma of Leadership and Management, and considers that given the evidence as a whole, he should be given the opportunity to complete this qualification and then return to India, as he has repeatedly stated.

1. The applicant has completed and been awarded the Diploma of Leadership and Management, and will soon complete the Advanced Diploma, and accordingly the Tribunal makes no adverse findings regarding his knowledge of his proposed course and education provider. In addition, the applicant was able to give evidence of the units of study he needs to complete to obtain his proposed qualification.

2. The Tribunal considers there is some evidence that the Advanced Diploma of Leadership and Management will be of value to the applicant’s future. The Tribunal notes the concern raised by the delegate that the applicant already holds an Advanced Diploma of Hospitality Management and there is overlap in the syllabus for that qualification and the Advanced Diploma of Leadership and Management. The Tribunal has considered the units for the two courses and notes some similarities, such as units in managing operational plans and units involving finance, however it considers the focus of the two courses to be different, and notes a number of units offered in the Advanced Diploma of Leadership and Management which the applicant has not previously studied. The applicant has now also clarified that his plans on returning to India are to work in his father’s railway components business, and to eventually manage his father’s share of this business.

3. The Tribunal accepts that the Advanced Diploma of Leadership and Management will provide the applicant with units of study relating to the running of a business, and accepts that such skills gained from a Hospitality Management qualification are unlikely to be as relevant. The Tribunal also accepts that the applicant has completed his education up until Year 11 in India, and therefore vocational-level studies are consistent with his current level of education. The Tribunal found some of the applicant’s reasons for undertaking the course and his explanations of the skills he will gain to be generic and not what would be expected of a student who has nearly completed his proposed qualifications, however the Tribunal also considers the applicant was nervous during the hearing, and has made some allowance for this. The Tribunal has also considered the applicant’s written submissions, which contain further detail.

4. While the applicant’s enrolment in a second package course at the vocational level may raise some concern, the Tribunal considers that the applicant has changed the direction of his career plans. Initially he planned to work in the hospitality industry in India, but has more recently decided to work in his father’s business before gaining some experience in the hospitality industry in India and then opening his own restaurant. Direction No.69 indicates that decision makers should allow for reasonable changes to career or study pathways, and the Tribunal considers the applicant has provided a reasonable explanation for his change in pathway.

5. The applicant’s immigration history refers to both his visa and travel history. The Tribunal notes that the applicant previously held two Tourist/Visitor visas, one of which was in 2009, and one Student visa. He completed the courses which were the subject of his first Student visa. He is now approximately five weeks from completing the package course which was the subject of the visa application under review. He has thus performed in a manner consistent with a genuine student, although he has not progressed academically beyond vocational studies. The applicant does not have an extensive visa history. There is no evidence to suggest the applicant has previously been refused a visa application or has an application for another class of visa which is yet to be determined. There is nothing before the Tribunal to suggest that he has breached the conditions of his visas. There is also nothing to suggest that the applicant’s intentions are to undertake a series of short and inexpensive courses, nor anything to suggest that he has been unsuccessful. Overall, the applicant’s immigration history raises no concerns at this point.

6. 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.

7. The Tribunal has had the benefit of observing the applicant’s performance in his proposed course of study. As noted above, the applicant has approximately five weeks to complete his proposed package course. Given his progress with this course, the Tribunal considers it appropriate that he be given the opportunity to now complete the course. While certain factors raise some concerns, such as the presence of both of the applicant’s brothers in Australia, the Tribunal considers that on balance, the applicant remains a genuine temporary entrant for the purpose of completing his studies. Should the applicant choose to apply for a further Student visa, particularly for further studies at the vocational level in another field unrelated to his current stated plans, this may once again raise concerns about his intentions.

8. 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?

9. 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.

10. 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).

11. 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 current progress with his studies.

12. 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?

13. 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)).

14. 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.

15. 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.

16. 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

17. 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.