AHMAD (Migration)

AHMAD (Migration) [2019] AATA 2247 (29 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad AHMAD
CASE NUMBER:  1715010
HOME AFFAIRS REFERENCE(S):           BCC2017/972335
MEMBER:Justin Meyer
DATE:29 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 29 March 2019 at 4:56pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – unsatisfactory academic progress – study at the VET level – short inexpensive courses – unrelated fields of study – value of course – no evidence of financial benefit – studying for interest – job offer – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 22 June 2017 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 12 March 2017. 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 intends genuinely to stay temporarily in Australia.
The applicant appeared before the Tribunal on 17 October 2018 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 decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The delegate noted:
·The applicant completed VET level courses in the three years since arriving in Australia in 2013.
·The applicant had changed courses and education providers several times from Accounts Administration to Accounting to Retail Baking to Accounting to Hospitality to English to Hospitality to Commercial Cookery and now they wish to study Hospitality Management. Even though a person may seek a change in career, it was noted that the courses he chose are typically of a short duration, low cost and in unrelated fields of study. This raised concerns that the applicant is not a genuine temporary entrant, and that he is using the student visa program to maintain residency in Australia rather than due to a genuine interest in study and academic progress.
·The delegate was therefore not satisfied that the applicant would be compelled to return to his home country on account of any economic reasons and that the limited family ties in Pakistan may present a significant incentive for him not to return to his home country.
·In terms of the value of the course to the applicant’s future, he had not clearly demonstrated the benefit that undertaking the proposed course in Australia would provide to his future career. In his GTE statement, the applicant stated that “I have studied hospitality & cookery courses recently and now I am studying certificate IV in cookery and after this I will complete my diploma and advance diploma of hospitality to get more professional skills in the hospitality industry. Also I always interested in cooking and I want to make my hobby as profession and this is the reason I am looking forward to acquire professional courses in cookery & hospitality. After completing these courses I will be more successful in my life because I will have hands on skills in cookery and hospitality management skills as well by completing my advance diploma of hospitality management. And it will be very easy for me get a job in hospitality industry and it will also easy for me to start my own business after getting some experience in hospitality industry back in my home country.”
·No business plans for their own future business had been provided. These would have demonstrated the financial benefit he would receive upon completing these courses. There was no evidence to suggest that the applicant had researched any employment or business opportunities in their home country. The applicant had not clearly demonstrated the benefit that undertaking the proposed courses in Australia would provide to their career prospects. While their employment and remuneration may improve slightly due to completion of these courses, they have not demonstrated a clear and substantial improvement arising from their proposed study that will outweigh the significant time and monetary commitment this course would require. The delegate was not satisfied that the applicant has demonstrated the value of their proposed courses to their future.
·The applicant had not provided any substantial evidence of close ties to their home country. There was no evidence that they had any property, business or investments in their name in Pakistan.
Response to the Tribunal’s s.359(2) request
The applicant has a year 12 education from Pakistan. He worked in the electrical industry in 2011 earning AUD2,250. His first visa application was for a subclass 572 visa which he made in July 2013. He then received subsequent subclass 572 visa which lapsed in March 2017.
He has from NMIT Certificate III in Accounts Administration, Certificate III in Retail Baking, Certificate III in Hospitality, Certificate IV in EAL, a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, and is presently studying for a Bachelor of Commerce at Torrens University, which he commenced in October 2017.
He has had paid work experience in the fields of IT, culinary staff, and static guard security work between November 2013 and October 2016. His annual salary range was between AUD8,000 per annum and AUD18,000 per annum. Since arriving in Australia he has returned to his home country in November 2014 to get married, in January 2016 for holidays, in June 2017 for is sister’s marriage, and in December 2018 because of his father’s sickness. He also travelled to Saudi Arabia in January 2013 for religious purposes. His monthly expenses were calculated at AUD1,200. He has parents, a brother, a sister, and a wife in Pakistan. The last time he saw any and all of them was in January 2018.
The applicant has a house to the value of AUD59,900 in Sargodha in Pakistan. The applicant states he is fortunate in that he has a job offer from his uncle’s thriving business. Is uncle has 300 permanent employees working in electric supply factory. His previously worked with the same business for he arrived in Australia. He has declared no military service commitments or political or civil unrest in his home country which may act as an incentive for him to remain in Australia.
Other information
The applicant applied a confirmation of enrolment from Torrens University the Bachelor of Commerce course and also enclosed a products catalogue for ‘Hero Electric.’
He further enclosed a statement of 10 October 2018, as follows :
My name is Muhammad Ahmad. I’m from Pakistan. I completed year 12 in commerce from Pakistan and then decided to do further studies from overseas and when I searched for higher education I found Australia my favourite place for many reasons 1^st of all it was in high ranking and Australian institutes degree is consider valuable and with respect in Pakistan, 2^nd it was not as expensive as Uni’s in USA, Canada or UK and weather is very much similar to Pakistan all four weather and Melbourne was in the top list for liveability index.
I’m currently enrolled in bachelor of commerce. My all family lives overseas (Pakistan) including my spouse and after completing my studies I have decided to go back and join them and start my job in business field which I already secured an offer letter for.
I came to Australia study certificate 3 in accounts administration leading to bachelor. After completing my cert 3 from NMIT which is one of the largest and famous TAFE in Victoria and meeting many students from other disciplines I changed my mind and thought I should study in food industry and set a new trend back in my home town using Australian qualification and experience. I started with retail Baking and cookery completed my course and went back to Pakistan few times and discussed my ideas with friends and family there to start a business over there in baking and patisserie. We did an initial feasibility but outlook was not very positive and as a result I decided to stick with my original plan of studying commerce. I enrolled in bachelor of Commerce to resume my original field which I had switched after cert 3 in accounts.
During my visit to Pakistan and exploring market I meet many business people in my family and outside family. As many family members are already in business before I came to Australia in 2013 I had worked in family business as book keeping staff for 1 year and more than six months as apprentice in same field. I thought I ‘ have to start bachelor in commerce and then I took admission in Torrens university where I have successfully completed my 3^rd semester and I’m very happy with study and future prospects in Pakistan. I have already secured a good offer to work in family business which is ISO Certified, have a more than 4500 distributors in Pakistan and exporting its Products to Middle east, Asia and Africa Since 1973. As soon as I complete my Degree here I ‘ll be joining HERO PAK Electrical industries Pty. Ltd in Pakistan on a starting package of PKRS 75000 + other benefits. Which is consider very good amount in Pakistan for a freshly graduate and I ‘ll be dealing and learning from working with other Big companies who provide consultancy to HERO PAK for example DELOITE and other Charter accountant firms.
After getting married, my wife and I decided to spend some time together in Australia but we were unable to secure her visa. So, under new circumstances both of decided that I must finish my bachelor of business program in shortest possible time so that I could join her in Pakistan and start a new life close to our extended family. My Uncle owns Electrical products manufacturing business with the name of “Hero Electrical Industries Ltd” employing more than 300 full time employees. I had been lucky to work with Hero Electrical before I came to Australia. I have been offered job in the same company upon my return and now I’m very eager to finish my studies as soon as possible so that I could avail the opportunity which has been afforded to me.
A job offer letter was also enclosed from Hero Pak Electrical in these terms:
‘Attn Muhammad Ahmad 5/0 Abdul Aziz 14-01-2018
We are pleased to know about you study going well and will complete in future on 30^th August 2020. As we already discussed with you when you were doing job with our company in accounts department that after completing study you will prefer to work with our organization.
In this matter our management has decided in a meeting that we offer you Job in Accounts department in a good position with very attractive salary package of PKR 70000/month. As our company management is very much satisfied with your past performance and your dedicated work and efforts for our organization so we will prefer to employ you in our organization. We are hopeful that you will accept this offer letter and will enhance our accounts department with the much best practices and as long as you complete your study we will wait for your response in this regard.’
A reference from this company was also included.
Analysis
The applicant was asked whether he planned to return home to use the skills from commercial cookery studies. He said he was not. He said he wanted at the time to learn about commercial cookery and food and more about the cooking. He said it was his passion - he said he liked cooking for himself and for friends.
The applicant was asked why he is now enrolled at Torrens University. He said it was because he had an offer from Hero Pak Electrical industries. This is the business of his uncle. His wife’s father is a co-owner of the business as well. Before he came to Australia he worked there for a year he said. He is said that they had offered him a job once he completes his degree.
He had worked at this company after completing school. He done a three-year internship and he did one year as a bookkeeping assistant. He was involved in the finances rather than manufacturing. It is a large factory with more than 300 employees. It has been in operation for 44 years.
The applicant said that currently he was studying business law, leadership and management, which he said would assist him in Pakistan working at Hero Pak. I challenged the applicant as to how he would apply those subjects. It was pointed out that his subject was business law of Australia was business law of Australia rather than the business law of Pakistan. He said they were similar principles. Leadership and Management he said was about managing staff and managing the accounts and finance section. He agreed that it was involving getting staff to do things such as payroll, when to promote.
He was asked whether it was useful to which she replied yes. Was asked whether this made him job ready to which she replied that would. He said he is not wanting to work in Australia because he already has the offer for a salaried job in Pakistan.
The Tribunal discussed with the applicant the various jobs that he had had in Australia.
It was discussed with the applicant that he had previously worked in the records maintenance area and bookkeeping area at Hero Pak. He was asked what area his future job would be in. He said it would have been a different department – the accounts department.
The offer for the job is for Rs.70,000 per month. The applicant said he had already accepted the offer. The applicant was asked whether the position required him to have a university degree in business. He said “yes they require it.”
The applicant was asked whether there were other people there that had bachelor qualifications. He said yes.
The applicant was asked what his title would be, to which he replied ‘accountant’.
The applicant was asked why he would not be taken on in the accounts department now in any event. He said that would not because he did not have much knowledge now because he said that only started last year.
The applicant was asked how many other accountants were at the company. He said in the main factory they have three accountants at the moment. He said in other cities they have accountants as well. He said he would have his job at head office where there were 300 staff. He said this is the manufacturing centre.
The applicant was asked about his life in Australia. The applicant said he was married in 2014. He said his wife was back in Pakistan. He was asked whether she had been in Pakistan since the parties married. He said that they had.
He had visited Pakistan four times for long stays, including two months, six weeks and six weeks.
The applicant said his wife was a housewife who lived with the applicant’s parents. She is 24.
The applicant was asked about his plans as to where he and his wife would live. He said he is going to get the job and they would move to Sargodha, as they come from different city. They would get their own home. He said his wife already had a home in Sargodha, which is presently empty.
The applicant’s wife’s father is a co-owner of the Hero Pak business.
The applicant was asked what his wife thought when he studied bakery in cookery. He said she was happy because when he goes back he visits his family and he makes dishes for them, and makes breads.
The applicant said his wife did not think he was going to work in the cookery and hospitality area.
It was put to the applicant that it was puzzling that he would study cookery and hospitality and bakery purely for interest. He was asked what the value was of this study to his future.
The applicant said that it would help with baking for family and friends. He said it was a skill which he had learned.
It was put to the applicant that to an independent observer looking at genuine temporary entry to Australia of the applicant, it appears that he is studying things out of interest rather than intending to return to his home country. I questioned whether it was of value to work in his home country. I put to the applicant that the study of commercial cookery if it was just for its own sake would make an outside observer wonder whether he in fact intended to go back to Pakistan.
The applicant said he would definitely go back to Pakistan because his wife was there. It was put to the applicant though that he had no plan when he was studying commercial cookery in baking. He disagreed and said that he had a plan.
The applicant asked what his plan at the time was. He said he was just doing it to get the knowledge in bakery in cookery to “get the skill”.

The applicant was asked about his change of mind and desire to do a commerce degree. He was asked what made him change his mind. He said it was the job offer.
He was asked what came first - the degree course or the job offer? The applicant was asked why his relative offered him a job. He said it was because he visited in June 2017 and he met his uncle and they just had a chat and he said ‘why not join us’ and do the degree and join the company.
The applicant said that the relationship between him and his parents was good.
The applicant was asked whether he ever had any arguments with his parents about courses in Australia to which he replied no.
The applicant was asked whether they ever asked him whether what he was doing with his studies and his life. He agreed that they had. He was asked whether they were happy to which he replied that they were because he was learning something new and they were happy about that.
After that he said he went back and changed his mind. The applicant was asked whether his father told him he should work in commerce or business to which he replied he did. The applicant’s father then talked to his wife’s brother who owns Hero Pak. That was the reason why the applicant’s uncle started talking to him about employment there.
The applicant said his wife was happy about him going to the Hero Pak business.
The applicant was asked whether his wife was getting impatient with him being away for four years. He said that he visited her the last year in December. He said that they videoed one another and Skyped even though they missed one another, they could make those calls. Sometimes the calls took two or three hours.
His wife does not have any family in Australia and has never been to Australia.
The applicant was asked whether the parties have planning to have children to which he replied ‘not now’. He was asked if he had children where he wanted them to grow up, to which he replied Pakistan.
The applicant was asked why he would not want his children to grow up in Australia with its benefits. He said his whole family was back in Pakistan and that was why.
The applicant said he would receive 70,000 Pakistan rupees per month which is the good income. It was better than average.
It was put to the applicant why he would do courses out of interest and that he has been married for four years and yet he still has not returned to Pakistan for good. The applicant was asked whether he had drifted. He said he had visited his wife and family. He said he just wanted to do the degree and go back.
He had lived with Pakistanis and other housemates in Australia.
His interests and hobbies were doing barbecues and visiting places. He does not play sport. He said he had a good social life. He said he has many friends in Australia but then corrected himself to say that there were not many but that they were in fact international students who would go back.
The applicant was asked why he did not stay with Hero Pak in the first place rather than leave Pakistan and do other things. He said it was because he wanted a business degree. It was put however to the applicant that he did not want to business degree at the time he left to go to Australia. He said cooking and bakery was his desire at that time.
He said he came from a wealthy and well off family. His father has an electric store in Lahore. The family owns property. One is vacant land and the other is the house which they live. His father pays for his education. His father contributes to part of his food and expenses.
The applicant said his mother was keen for him to come back.
The completion date for his current course is August 2020 and it is a three-year degree.
The applicant was asked whether his uncle will not employ him on his current qualification level, despite having a certificate in account administration, and having completed a year of his university degree. The applicant said what he had done so far was not enough. It was put to the applicant that he had been in the workforce and understood the company, so why could he not begin right away? He disagreed.
The applicant was told that the Tribunal was puzzled by the circumstances because the applicant was spending a long time away courses which for a while which seemed to be just out of interest even though he has a wife and family members and other things in Pakistan and he will not go be going back there for another two years. It was put to the applicant that did not sound very urgent. It was put to the applicant there was no sense of urgency.
He said he just wanted to complete the degree and definitely go back. He said ‘even my father is sick’ - he has a liver problem.
Findings
I find that the applicant has reasonable reasons for not undertaking study in his home country, as is explained the value of his education in Australian institutions as being in high esteem in Pakistan.
He has family community and employment ties to Pakistan and these are a significant incentive to return. His family are all in Pakistan including his wife and he was born and grew up in that country. His visited several times and for long stays. I give this factor weight.
He is no apparent military service requirements and orders it bears their political or civil unrest affecting the applicant. I consider the circumstances the applicant in his ties with Australia. The applicant has a number of friends in Australia and has admitted as such. He seems to have an active social life in Australia and although his claim that these are with international students will eventually go home he does not adjust the fact that he has an active life in Australia.
The applicant’s knowledge of living in Australia seems high to the Tribunal and he could describe his education provider and the quality of his course and aspects of his various courses with clarity.
His course is not consistent with his current level of education despite the fact that the applicant is relatively young, 26 years old, he has been studying in unrelated fields. I am concerned about the applicant’s transitioning from commercial cookery and baking and related area to studying a Bachelor of Commerce. I do not accept his reasons that he merely studied commercial cookery in baking out of interest. The answers that he gave were desultory and lacking in conviction. The applicant struggled to identify about how he in fact had a plan to go back to Pakistan when he was studying commercial cookery and baking and yet did not in fact take up that plan and went on to another field of study entirely i.e. commerce.
His responses in the hearing do not tally with his earlier application that it would be very easy for him to get a job in the hospitality industry and it will also be easy for him to start his own business after getting some experience in hospitality industry in his home country. This is a previously described work focus they he now walks away from.
The Tribunal is concerned about the applicant’s casual explanation as to his uncle offering him work, at a place that he used to work. Although courses and directions can change in life especially when a student is young, it was difficult to understand how the applicant was doing a full circle. It was also puzzling that the applicant who claimed to miss his wife yet nonetheless has not lived with her other than to visit in four years and says that he will only be able to be reunited in a permanent sense with her in 2020.
The Tribunal is also concerned about the slim job description that the applicant has made including his documentary evidence. The Tribunal struggled to see the difference between working in the accounts section of the company in question and the other sections that he had earlier worked in. The applicant has attempted to explain that he needs a degree for the salary that he wants but his job description was sketchy and the Tribunal is left in considerable doubt as to why he could not go to Pakistan and work there immediately. This coupled with his puzzling explanations about being in Australia in his earlier period led the Tribunal to conclude that he is not a genuine temporary entry for study in Australia and that he does not return intend to Pakistan. This is despite the fact that a degree qualification might well improve his remuneration prospects in Pakistan, and his other concerns and linkages there, but nonetheless my concerns outweigh this factor.
For these reasons the Tribunal is not satisfied that the applicant intends a temporary stay in Australia.
On the basis of the above and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily accordingly the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Justin Meyer
Member

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:
c.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
d.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
e.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
f.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
g.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;
i.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
ii.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
iii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country
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.

[2019] AATA 2247

29 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction