Anand (Migration)

[2022] AATA 4466

Anand (Migration) [2022] AATA 4466 (11 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nikhil Anand

REPRESENTATIVE:  Mr Robin Chohan (MARN: 2014402)

CASE NUMBER:  2116227

HOME AFFAIRS REFERENCE(S):          BCC2021/1459616

MEMBER:Robert Cumming

DATE:11 November 2022

PLACE OF DECISION:  Brisbane

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 11 November 2022 at 3:34pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – applicant changed to vocational courses – reasonable academic progress to benefit future career – medical treatments – return visits to India – significant family ties in home country – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 69
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 now Minister for Immigration, Citizenship and Multicultural Affairs on 25 October 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 23 July 2021. At the time of application, Class TU contained 2 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 the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the applicant intended genuinely to stay in Australia temporarily.

4. The applicant appeared by telephone before the Tribunal on 12 May 2022 to give evidence and present arguments.  The Tribunal exercised its discretion to hold the hearing by telephone.  The hearing was held during the COVID-19 pandemic, however the more practical reason for holding the hearing by telephone was that the Tribunal, as constituted, was sitting in Brisbane, and the applicant was offshore in his home country, India.  As such, a remote attendance would have been necessary anyway, even though it is the fact that face-to-face hearings have largely been put on hold because of the pandemic.  In any event, the applicant and her representative actively participated in the hearing by telephone, and, when asked at the outset of the hearing, the applicant did indicate that she agreed to and accepted the hearing to be undertaken by telephone.  The Tribunal is satisfied, therefore, that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant was assisted in relation to the review by his representative, Mr Robin Chohan.

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 intends genuinely to stay in Australia temporarily.

   Genuine applicant for entry and stay as a student – cl 500.212

8. Clause 500.212 of the Regulations 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, a copy of which was provided to the applicant in the course of the application process by the Tribunal and another copy of which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

10. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

11. The Tribunal has had regard to all the information supplied to the Department with the visa application, which is on the Departmental file provided to the Tribunal, and all the information supplied to the Tribunal by the applicant.  In particular, the Tribunal notes the application and supporting documents received by the Tribunal respectively on 9 and 10 November 2021, the completed Request for Student Visa Information form (information form) and submissions received by the Tribunal on 23 March 2022, the supporting documents and submissions received by the Tribunal on 3 May 2022, the further supporting documents received by the Tribunal after hearing with the leave of the Tribunal on 26 May 2022 and the oral evidence and submissions given by and on behalf of the applicant at the hearing.

12. The Tribunal notes that it has on its file certain information which was not provided by the applicant.  These were printouts from the Provider Registration and International Student Management System (PRISMS) and the Departmental Movement records.  The Tribunal notes that the information contained in these printouts was largely to similar effect as the information already supplied to the Tribunal, most notably in the information form completed by the applicant.  In any event, out of fairness, the applicant and her representative were sent these printouts prior to the hearing and had them available at hearing and were given time to consider them.

13. The applicant did not dispute the contents of the printouts.  A concern was put to the applicant under s 359AA of the Act that his lack of academic progress and changing of the subject matter of her studies might how she was not a genuine student which might be the reason, or part of the reason, for the decision under review being affirmed.  The applicant took the time to give a detailed explanation in this regard which will be considered later in this decision. The applicant was granted additional time by leave to supply documentation regarding his academic records and his medical condition which went to answering the concerns put to the applicant under s 359AA of the Act.

14. Based on all the information available to the Tribunal, most notably the material supplied by the applicant, the applicants’ circumstances may be summarised as follows:

    (a)The applicant is a 24 year old (aged 23 years at hearing) citizen of India who first arrived in Australia on 2 July 2018 as the holder of a Subclass 500 Student visa.

    (b)The applicant has links in his home country in the form of his parents and a sister.  His father has his own business which is a medicine/drug supply business with some 4 employees and he also has commercial property and investments.  His mother attends to home duties.  When in Australia the applicant kept in contact with his family on a daily basis with chat/video calls.

    (c)At the hearing the applicant was back at home in India with his parents having suffered medical problems which necessitated his hospitalisation in Australia.  On discharge from hospital and with the opening up of the borders following the easing of restrictions brought about the COVID-19 pandemic, the applicant returned to India and was in India at the time of the hearing.

    (d)The applicant described his family as the equivalent of an upper middle class family.  Because of those circumstances, and the fact that he is currently in India being supported by his parents, the applicant indicated that financial difficulties in India are not a concern for him.

    (e)In his completed information form, the applicant indicated that he has no concerns in respect of military service commitments he would have to render in India or in respect of any political or civil unrest in the area of India where his family lives.

    (f)When the applicant was in Australia, he had no family members but did develop a friendship network from his various Registered Training Organisations (RTO).  However, as much of the time the applicant was in Australia was subject to the COVID-19 pandemic restrictions, he did not socialise to any great extent with that friendship network.

    (g)The applicant did, however, have a work history in Australia.  He worked as a baker with Jurgens Bakery from August 2018 to April 2019.  He then was a storeman with Patties Foods between May 2019 and December 2019 and between December 2019 and April 2020 he worked as a security officer with NPS Solutions.  The onset of restrictions with the COVID-19 pandemic brought that more permanent employment to an end although he did have casual jobs subsequent to that time.  Based on his earnings from the various employment opportunities that he undertook, it appears that he was earning sufficient money to cover his living costs said to be of the order of $9,120.00 per annum.  The applicant did point out, however, that the bulk of his costs were covered by his family from India.

    (h)As far as education is concerned, the applicant completed his secondary studies in May 2017 in India and then had some studies through the International Institute of Standard Education obtaining a Diploma in Computer Applications and Accounts and a Diploma in Web Development and Animation.  In the first half of 2018, before his arrival in Australia, the applicant had an internship with the Arogya Ayurvedic Centre.

    (i)On arrival in Australia the applicant undertook a Bachelor of Computer Science.  The applicant said this was at the behest of his father and although he was enrolled and undertaking studies during 2018 and 2019 that was not what he wished to do, and he discontinued those studies.  The applicant has produced evidence of undertaking those studies in 2018 and 2019 from Deakin University where he was enrolled.

    (j)The applicant then said that he wished to, and made arrangements to transfer over to, vehicle mechanic type studies because that was what he really wished to do and he thought that that would be an advantage for him with the burgeoning car industry in India.  He said that his educational agent unfortunately gave him some unhelpful advice which saw him enrolled in the narrower Automotive Electrical Technology type studies.  He realised this was not for him and in August 2021 he changed over to the more traditional suite of vehicle mechanic courses namely the Certificate III in Light Vehicle Mechanical Technology, the Certificate IV in Automotive Mechanical Diagnosis and the Diploma of Automotive Technology.  That change of course meant that the Automotive Electrical Technology follow-on courses were cancelled which means the PRISMS records contain a large number of cancelled Confirmations of Enrolment (CoEs).  Indeed, at the outset there were quite a number of enrolments and CoEs created which seemed to have been of an administrative error in creating the CoEs because at least 4 sets of Co’s have similar dates and were subsequently cancelled as a result. So to that extent the Tribunal considers that the large number of cancelled CoEs can be dealt with on the basis of administrative reasons for the cancellations.

    (k)The applicant did make progress in his studies and has produced to the Tribunal a certificate stating that by December 2021 he had completed 33 of his 36 units required to achieve completion of the Certificate III in Light Vehicle Mechanical Technology.

    (l)However, in February 2022 the applicant was admitted to the Alfred Hospital reporting a history of command auditory hallucinations directing him to harm himself and others in the 4 months prior to admission as well as a background of the previous 9 months of low mood, reduced energy, and anhedonia and paranoia.  He also described a 3 month history of right lower back pain, likely musculoskeletal in nature, as well as left eye blurriness and bilateral distal numbness of the hands and diplopia. These descriptions come from the medical evidence and reports the applicant has supplied to the Tribunal.

    (m)On discharge from hospital in approximately early March 2022 the applicant obtained a Bridging visa Class B which allowed him to leave Australia and he so departed Australia on 10 March 2022 to be with his parents to help him deal with his psychiatric problems.  At hearing he was receiving psychiatric treatment from Dr Harjot Singh and has also included the various test results which shows that the applicant is suffering manic impairment, compulsive type obsessive compulsive disorder, moderate anxiety and the treatment for which involves cognitive behavioural therapy as well as relaxation technics which have brought about an improvement.  Indeed, at hearing the applicant was able to conduct himself quite normally and his responses were entirely appropriate throughout.

    (n)As to the applicant’s future intentions, the applicant says that he intends to return to Australia to complete his suite of vehicle mechanic courses when he can.  At hearing he had future enrolments from September 2022 through to May 2024 which he said he intended to complete and then return back to India to open his own vehicle mechanic business and build upon the burgeoning vehicle industry in India which he spoke of in some summary detail at hearing.

    (o)As to previous visas, the applicant has previously been granted one Student visa and two Bridging visas, one Class A and one Class B.  In his information form, the applicant set out that, apart from the current visa application which is the subject of this application before the Tribunal, he had not had any other visas in any country (including Australia) cancelled or refused.  The applicant further confirmed that he had been compliant with his visa conditions. Similarly, he is not awaiting the outcome of a visa application which he has applied for but no decision has been made.

    (p)The applicant was in Australia between initial arrival and return to India on 10 March 2022 for a period of 3 years 253 days.  Based on the information provided at hearing, were the applicant then to return to Australia to complete his studies he would be in Australia counting that time from the start of the courses to the last day of the courses as per the relevant CoEs for a further period of 1 year 262 days.

    (q)Apart from dealing with the issues of concern and explaining the situation regarding his studies in greater detail and his general statement of intention for his future career, which will be discussed later in this decision.  The applicant did not suggest there were or give evidence concerning any other matters which may relate to his genuine temporary entrance status in Australia.

15. During the hearing, the Tribunal raised possible concerns it may have in respect to several issues.

16. In no particular order, one issue related to the reason the applicant intended to study in Australia rather than at home in India.  In this regard the applicant highlighted the international recognition of the qualifications he would gain from Australia and the overall quality of the education in Australia.  He pointed out the value to him of studying in a multicultural environment where English was the language of instruction which would be of an advantage to him back home in India as well as the example of a friend of his who was able to secure better employment in India, albeit in the IT industry, having obtained international qualifications.  The applicant also pointed to the more practical hands-on experience he would gain from studies in Australia.

17. Another issue of concern raised by the Tribunal was the fact that the applicant had, on the basis of the PRISMS records, seemingly chopped and changed with his career choice and had not, as at hearing, successfully completed any qualifications.  This was in a period of some 3 years 253 days that he was in Australia.  In responding to this, the applicant pointed to his father’s desire initially that the applicant gain computer qualifications and he did suggest that he had (and subsequently produced evidence from the university that he had) completed 3 trimesters of study in 2018 and 2019.  The applicant then pointed to his change of career course and having been given bad advice as to his undertaking of automotive electrical training.  The applicant then went on to suggest that he had then settled upon the vehicle mechanical suite of courses and had progressed to a large extent in his Certificate III course.  This was subsequently corroborated by production of the statement of achievement the applicant produced from the Menzies Institute of Technology.  The applicant then said his mental condition had deteriorated and the medical evidence from the Alfred Hospital and Dr Harjot Singh does substantiate his statements in that regard.

18. As stated above, the key issue the Tribunal has to decide in this case is whether the applicant intends genuinely to stay in Australia temporarily. On that issue, the considerations set out in cl 500.212(a) of Schedule 2 to the Regulations govern the matters the Tribunal needs to consider.

19. In assessing whether an applicant meets the genuine temporary entrant criterion, the Tribunal must have regard to Direction No.69.  As also noted above, that Direction is not to be used as a checklist, but rather is intended to guide decision makers in considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

20. In adopting that process in this case, and having considered all the factors in the Direction, on the basis of which the Tribunal has made certain findings which are about to be set out, the Tribunal finds that some of those factors and the findings based on those factors are not of such significance, importance or materiality to its decision so as to tip the balance away from the view the Tribunal has taken of the applicant’s circumstances.  This is not to suggest that those factors and the findings based on those factors have been overlooked.  Rather, the Tribunal, in considering its decision, has found these factors and findings of lesser weight in balancing all the factors and findings and coming to its decision overall on the merits of the review application.

1. Having had regard to the applicant’s evidence and submissions, including oral and written submissions on his behalf by her representative, Mr Moeidjiantho, and the applicant’s responses to the possible concerns raised by the Tribunal, which have been discussed above, and giving consideration to all the factors specified in Direction No.69, the Tribunal makes the following findings:

   (a)In considering the applicant’s reasons for studying in Australia, the applicant has in his evidence pointed to the international recognition of the studies he can obtain from the Australian qualifications as well as the relative quality of the education he considers he could get in Australia compared to that he would obtain in India.  This includes the more practical nature of studies in Australia as compared to India.  While the applicant has not produced any independent evidence corroborating that other than the evidence of the person with IT qualifications who had a better career path back home in India with international qualifications there is no particularly strong countervailing evidence as far as the applicant is concerned.  While reasonable minds may differ, the applicant can account for preserving with his study in Australia and has produced evidence of completion of studies.  Taking into account the applicant’s explanations and his student history, the Tribunal is prepared to accept in this instance that the applicant has given reasonable reasons for him to be studying in Australia rather than in his home country of India.

   (b)The applicant has links in his home country in the form of his parents and his sister.  At hearing the applicant was actually back home in India being supported by his parents and receiving follow-on medical treatment after the psychiatric episode he had suffered in February 2022.  While the applicant does not own any property at this stage in India, in the due course of family succession in India given that he is the only son, it is reasonable to anticipate he will succeed to the family land, shops and investments.  The applicant indicates that he does intend to return for a period which seems to be of the order of approximately 1 year 262 days to complete his suite of vehicle mechanic courses and then return home to India to open his own business.  This will be in the latter part of 2024 based on the evidence available at hearing.  There is the conduct of the applicant while he was in Australia where he worked and did achieve the completion of 3 trimesters of education at Deakin University and 33 out of 36 competencies in his Certificate III in Light Vehicle Mechanical Technology.  The applicant was not in Australia at the time of hearing.  In all of those circumstances, balancing up the factors for and against the applicant, the Tribunal considers that the applicant does have a significant incentive to return to India but when he completes his studies.

   (c)As to economic circumstances in the applicant’s home country, the Tribunal notes that at hearing the applicant was in his home country being supported by his family.  Accordingly, the Tribunal considers that the economic circumstances of the applicant in his home country, India, would not present a significant incentive for him not to return to his home country.

   (d)There is no evidence of any requirements for military service commitments affecting the applicant which would present a significant incentive for him not to return to his home country.

   (e)There is no evidence of any circumstances of political or civil unrest in the area of India where the applicant’s family are located which would present a significant incentive for him not to return to India.

   (f)In considering the applicant’s circumstances in his home country relative to the circumstances of others in that country, the Tribunal finds that the applicant comes from an upper middle class business owning family but otherwise does not make any findings in that regard which are other than entirely neutral towards the applicant.  The applicant’s ties in Australia were his studies and casual work.  At hearing he was not present in Australia.  The issue was whether the time the applicant did spend in Australia were profitability spent on studying or whether that conduct was evidence of some lack of genuineness as far as he was concerned as a student.  Having after hearing produced evidence of undertaking of studies in Deakin University and the Menzies Institute of Technology the Tribunal is satisfied that the applicant’s conduct is not of a person who is using his student visa to circumvent the intentions of the migration program.

   (g)For similar reasons, the Tribunal is prepared to find that the conduct of the applicant is not that of a person who is using his student visa to maintain ongoing residence in Australia.

   (h)As there is no secondary applicant, it becomes unnecessary for the Tribunal to find whether the applicant has contrived to enter into a relationship for a successful student visa outcome. 

   (i)As to the applicant’s level of knowledge of living in Australia, his intended course of study and his associated education provider, the Tribunal is satisfied that the evidence the applicant in this regard was sufficient to satisfy this particular criterion.

   (j)As to the applicant’s current undertaking of studies, it is noted that he did attempt Bachelor level studies initially but could not complete those.  Other than that, he has then been proceeding with the suite of vehicle mechanical courses and it is his intention to return to Australia subsequently to complete that suite of courses.  The applicant indicates he intends to work in the vehicle mechanic field and open his own business in that regard. Thus, to that extent, the Tribunal can find that this is consistent with the applicant’s efforts to improve his educational level and that this will assist him in obtaining employment or improving his employment prospects in his home country.

   (k)For similar reasons, given the applicant’s stated intention of working in the vehicle mechanical industry, the studies the applicant is intending to undertake are relevant to that future employment in his home country or third country. 

   (l)As to remuneration this was discussed in some detail. A suggestion of earnings of the order of 10 Indian lakhs was suggested.  While this in itself was potentially less than he would earn in Australia, the applicant did point out the advantages of the lower cost of living and the family support he would get at home in India as overall being more satisfactory as far as he was concerned.  The Tribunal accepts that all persons establishing businesses do so with a view to operating a successful business but only time will tell whether that occurs.  Overall, this is a factor which the Tribunal will view in a neutral fashion as far as the applicant is concerned. 

   (m)As at the date of hearing, the applicant had lived in Australia until 10 March 2022 for a period of 3 years 252 days.  He had not returned to India in that time (which largely coincided with the travel restrictions imposed as a result of the COVID-19 pandemic) but had subsequently returned to India on 10 March 2022 and was still there at hearing on 12 May 2022.  Were the applicant to return to Australia to complete his studies, counting that just for the period of the duration of those courses as per the relevant CoEs, the applicant would then have been in Australia for a further period of 1 year 262 days.  During this time the applicant will have completed his suite of3 vehicle mechanic courses and will have had the advantage of some studies in his Bachelor of Commerce although he did not qualify in that course.

   (n)As to previous visa applications of the applicant, but for the current visa application under review, the applicant has successfully been granted one Subclass 500 Student visa and 2 Bridging visas, one Class A and one Class B.  There is no evidence that any other visas the applicant has applied for in any country (including Australia) have been cancelled or that any other visa he has applied for in any country (including Australia), apart from the current visa under review, have been refused.  There is no evidence to suggest that the applicant is awaiting an outcome of a visa application for another class of visa for which he has applied and for which a decision has yet to be made. 

   (o)As to compliance with visa conditions, there is no evidence before the Tribunal to suggest that the applicant has failed to comply with these conditions. 

   (p)There is no evidence the applicant has travelled to any other country apart from his home country and Australia and, as a result, it is unnecessary for the Tribunal to make a finding as to whether the applicant has complied with the migration laws of any other country.

   (q)As noted, were the applicant to return to Australia and complete his vehicle mechanical suite of courses he will have been in Australia for a period then of a further 1 year 252 days to add to the period of 3 years, 353 days he was in Australia prior to departure home to India on 10 March 2022.  This is in circumstances where the applicant has persevered with his studies and although at hearing, had not successfully completed any actual course of study in that time, he has produced evidence of Bachelor of Commerce studies undertaken during 2018 and 2019 at Deakin University and completion of all but 3 competencies of the Certificate III in Light Vehicle Mechanical Technology at Menzies Institute of Technology and has also pointed to poor advice leading to him undertaking automotive electrical studies when this was not his overall career choice that he decided he wished to make.   While reasonable minds may differ, the Tribunal is not prepared to find that the applicant’s conduct at this time amounts to that of someone who is not intending to study genuinely and then has an intention to remain in Australia other than temporarily.  While the applicant has denied that he would remain in Australia after returning to complete his studies, there is certainly no compelling countervailing evidence to suggest that situation is not what will occur. Accordingly, weighing up all the evidence, the Tribunal is not prepared to find that the conduct of the applicant is of someone who is using his student visa primary for the maintenance of ongoing residence in Australia.

   (r)As there is no secondary applicant, let alone a secondary applicant who is an infant, it is unnecessary for the Tribunal to consider the intentions of a parent, guardian or spouse of an infant applicant.

   (s)There are no other relevant matters that bear upon the conduct of the review as to the applicant’s status as a genuine temporary entrant.

2. Balancing all of these findings, the Tribunal considers the weight of the evidence points more to those factors and findings which are in favour of the applicant’s case rather than those factors which are negative or neutral to his case.  In weighing up all of the evidence, the Tribunal considers that it can be satisfied that the balance does tip in favour of the applicant and, while reasonable minds may differ, in carefully looking at the evidence, the Tribunal is not prepared to find that the conduct of the applicant is that of a person who is using his student visa to maintain residence in Australia.

3. Having had regard to all matters, including the Direction No.69 requirements, to which regard is required, the Tribunal is satisfied the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

4. Noting the findings in paragraph 21(o) and (s) above, the Tribunal is satisfied that the applicant meets cl 500.212(b) and (c) of the Regulations.

   Conclusion on cl.500.212

5. The Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

6. 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

7. 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.

   Robert Cumming
   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.