Arain (Migration)

Arain (Migration) [2019] AATA 4438 (8 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Asad Javed Arain
CASE NUMBER:  1722217
HOME AFFAIRS REFERENCE(S):           BCC2017/2714722
MEMBER:Frank Russo
DATE:8 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 08 October 2019 at 7:09pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) –genuine intention to stay in Australia temporarily – applicant’s circumstances in Pakistan and Australia – enrolment in and completion or cancellation of multiple courses – current enrolment at lower level – continuation of studies despite visa refusal – value of studies to applicant’s career objectives – applications for permanent visas – intention to maintain ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
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 5 September 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 31 July 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(a) 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.
The applicant appeared before the Tribunal on 28 May 2019 to give evidence and present arguments.
The applicant is a 32-year-old citizen of Pakistan. In addition to the application form, the applicant provided the Tribunal with a number of other documents, as follows:
a.A copy of the Delegate’s decision, dated 5 September 2017;
b.A s.359(2) response, received by the Tribunal on 12 April 2019;
c.Confirmations of Enrolment (CoE) for the Diploma of Information Technology Networking and Advanced Diploma of Network Security at Pacific College of Technology, both created on 15 February 2019; and
d.Letter from Pacific College of Technology, dated 27 May 2019, confirming the applicant is enrolled in the Diploma of Information Technology Networking.
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.
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 temporary 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, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
At the hearing the applicant gave evidence that he is enrolled in the Diploma of Information Technology Networking at Pacific College of Technology, which he stated he commenced in September 2018. He provided the Tribunal with a current CoE for this enrolment, which commenced on 22 April 2019 and is scheduled to end on 6 December 2019. The applicant also provided a copy of letter from Pacific College of Technology, dated 27 May 2019, confirming his enrolment in this course as a full-time student. He also provided a CoE for the Advanced Diploma of Network Security at Pacific College of Technology, which is scheduled to start on 3 February 2020 and end on 1 February 2021.
The applicant gave evidence that he first arrived in Australia in September 2020, commencing his studies with a Diploma of Accounting and then a Bachelor of Business at Holmes Institute, both of which he completed. The applicant stated that he then completed a Master of Accounting, also at Holmes Institute,. The applicant stated that following this he was granted a Temporary Skilled Graduate visa (subclass 485), which he held for 18 months. He told the Tribunal that he next applied for a further Student visa to study an Advanced Diploma of Information Technology.
The applicant told the Tribunal that prior to arriving in Australia he completed a Bachelor of Commerce in Pakistan, although he did not work in Pakistan after this. He stated that his intention when he first arrived in Australia was to obtain the Diploma of Accounting and then a Bachelor degree, and then apply for jobs in his home country. He told the Tribunal that his current plan following the completion of the courses he is currently enrolled in. is to return to Pakistan. He told the Tribunal that when he finished his studies in Accounting he didn’t have IT knowledge, which is why he has now enrolled in IT courses. He stated that IT is very developed in his home country and that companies in Pakistan want to hire people who also have IT knowledge. He stated that with Accounting you use IT software, and at the end of his current studies he will have accounting and IT knowledge.
Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal, in particular that it may indicate the applicant has enrolled in additional courses in order to extend his stay in Australia. The Tribunal explained to the applicant the consequences of relying upon the information, namely that it may be the reason or part of the reason for affirming the delegate’s decision. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments or wished to respond in relation to the information contained in his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.
The applicant indicated that he wished to respond to the PRISMS record at the hearing. The applicant confirmed that the record looked accurate.
The Tribunal notes that the applicant’s PRISMS enrolment record is largely consistent with the evidence of his enrolments which the applicant gave at the hearing. His PRISMS record indicates that he was initially enrolled in a Diploma of Accounting from 11 October 2010, which he completed. Following this he was enrolled in a Bachelor of Professional Accounting from 14 November 2011, however this enrolment was cancelled on 25 March 2013 and the applicant enrolled a few days later in a Bachelor of Business, which he completed on 31 July 2014. The applicant was next enrolled in a Master of Professional Accounting, which he completed early, on 15 March 2016.
The applicant’s next enrolment is for an Advanced Diploma of Information Technology, commencing on 7 August 2017. This enrolment was cancelled because of a deferment/suspension for compassionate or compelling circumstances, with variations in both January and February 2018. The applicant has a second enrolment in the same course, which was again cancelled, with the following reasons provided: ‘Non payment of fees’ (4 January 2019) and ‘Unsatisfactory course progress’ (5 March 2019). The applicant then enrolled in his current courses, the Diploma of Technology Networking and the Advanced Diploma of Network Security.
When asked why he chose to enrol at Pacific College of Technology, the applicant stated that he went to see an education consultant and asked which college is the best. He was given two options, one in the city and one in Auburn. He stated that the college provides him with all his knowledge needs.
When asked which college he had been enrolled in for the Advanced Diploma of Information Technology, the applicant stated that it was a college in the city and at first he couldn’t remember the name, although later he remembered it was Academies Australasia. He told the Tribunal that he deferred from this college for one term as he was overseas. He stated that he changed his education provider from Academies Australasia to Pacific College of Technology following a dispute over fees following his need to travel overseas. The Tribunal accepts this evidence and makes no adverse findings regarding the applicant’s change in Diploma and Advanced Diploma courses following the visa refusal decision.
The applicant stated that he attends his current college on Mondays and Tuesdays. When asked about the assignments he has completed, he stated that he has both practical and written assignments. He stated that the day before the hearing he completed five assignments and he was submitting one assignment on the day of the hearing. When asked about the nature of the assignment he was submitting, he stated it involved putting in information about computer hardware.
As to why he chose to study in Australia, the applicant stated the main reason is because Australia is developed and the education level is higher than in his home country. He stated that he has studied Bachelor and Masters degrees in Australia, and has knowledge that the education system is better in Australia. He stated that although he had a Bachelor of Business from Pakistan, that qualification is not recognised in Australia and is considered as equal to a diploma level course.
The applicant gave evidence that in Pakistan he retains strong family connections, which include his father, brother, sisters and his wife. His mother passed away in 2013. He stated that he visits Pakistan ‘always’. Since his arrival in September 2010, he has returned to Pakistan 9n 2012, 2013, 2016, twice in 2017 (on one occasion for 65 days), once in 2018 and in 2019 (for 65 days). He stated that he maintains contact with family and friends. He contacts his family on a daily basis with phone applications. He stated that he has no family in Australia other than an uncle. He stated that he married in April 2017, and confirmed that he has not included his wife in his Student visa application as he plans to go back to Pakistan.
The Tribunal accepts the applicant has personal ties and other incentives, which may serve as an incentive for him to return home following the completion of his studies, and the Tribunal has regard to this in considering the applicant’s circumstances as a whole. The Tribunal notes his regular return to Pakistan, as well as his wife who remains in Pakistan.
There is no evidence of any military service or civil or political unrest in his home country that would act as an incentive for the applicant to remain in Australia. There is no evidence that the applicant has entered into a relationship of concern. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in Pakistan, relative to others in that country, and the Tribunal makes no adverse findings in regards to these factors.
Although the evidence the applicant gave for his reasons for not undertaking the study in his home country was of a generic nature, the Tribunal makes no adverse findings regarding this consideration. Nor does it make adverse findings regarding the applicant’s knowledge of his education provider or his course of study, given he has continued his studies after his visa application was refused, despite the applicant’s evidence indicating he had undertaken little research into potential education providers.
The applicant stated that he has not worked in Pakistan as he was a full-time student prior to arriving in Australia. He stated that at the time of the hearing he was working as a taxi driver 20 hours per week and was earning approximately $800 to $900 per week, although he stated how much he earns depends on his work from week to week. He stated that he has previously worked at a petrol station, in a coffee shop and worked for six months as an accounts payable clerk. He stated that during ‘tax time’ he has worked with a tax agent, and that last year he worked for 10-12 weeks. Although the applicant has gained some experience as an accounts payable clerk, which may be relevant to his proposed future as an accountant, there is no strong evidence of economic or other ties to Australia, other than the time he has now remained in Australia on four Student visas and a Skilled Graduate visa, and the Tribunal makes no adverse findings regarding his ties with Australia.
The applicant stated that after he completes his studies he intends to get a job in the accounting sector, but stated that he could also get a job in the IT sector. When asked how his current studies will assist him to obtain employment or to improve his employment prospects, he stated that he had previously applied for jobs in Pakistan after completing his Masters degree, but was not successful. He stated that the technology in Pakistan is much higher and companies want people with skills in more than one field. When asked which companies he is interested in applying to, he stated in small to large companies. When asked about the companies he had applied to, he said he applied for a job with a furniture manufacturing company in Pakistan.
In his GTE Statement provided to the Department, a copy of which is at folios 39-40 of the Department’s file, the applicant provided the following reasons for enrolling in the Advanced Diploma of Information technology:
While pursuing my master degree, especially during my project work I was somehow intrigued with the strategic planning and functioning of different projects and applications of the course. Also, I realised that I have acquired Accounting skills for business through my master’s degree but I lack in technical skills which are equally necessary to stand out and to sustain in any Multinational Firm while I will be looking for jobs back in my home country.
After giving it a thought I decided to enhance my technical skills by taking up a course into Information Technology. After a brief research, I decided to go with Diploma of Information Technology and Advanced Diploma of Information Technology from Australian College of Technology Pty Ltd. The main reason for choosing a diploma level of course was that, I have never studied Information Technology earlier and I thought that doing a master’s level of course would be very difficult for me and I also believe that I do not need an extensive knowledge but just basics of Information Technology. I have dreamt of working at managerial position so the technical skills acquired by completing this diploma will give my professional career an upward boost.
When asked about the potential remuneration he could expect to earn in his home country using the qualifications to be gained from his current studies, the applicant stated that if he had returned just after completing his Masters degree he would have been capable of earning approximately 30,000 to 40,000 rupees per month, which he stated is roughly the equivalent of $400 to $500 Australian Dollars per month. He stated that those who have more than one degree can make $1,000 to $1,500 Australian dollars per month. The Tribunal also notes the information the applicant provided in his s.359(2) response, where he stated that IT professionals can earn $20,000 Australian Dollars in his home country, and that accountants earn around $7,000.
Regarding the value of the course the applicant is studying to his future, the Tribunal considers that the applicant’s present studies, at the Diploma and Advanced Diploma level, will only marginally improve the applicant’s employment prospects and remuneration in Pakistan. The proposed further studies offer limited incremental value when considered alongside the approximately eight years of experience which the applicant has already obtained in Australia, including a Bachelor degree and Masters degree and eighteen months working with a Skilled Graduate visa, in addition to his existing Bachelor degree which he earned in Pakistan prior to arriving in Australia.
The Tribunal has considered the applicant’s evidence with respect to his attempts to find work in Pakistan following his completion of his Masters degree, and his expressed view that employers in Pakistan are looking for employees who have skills in more than one field. The Tribunal notes that applicant’s evidence that he is not looking to change his career path, but to enhance his employability in the field of accounting and working with multinational companies. The Tribunal accepts that having skills in more than one field may increase the employment opportunities for an individual, however the Tribunal considers that the applicant’s current level of studies are likely to add only incremental benefit (both in terms of remuneration and employability) to the applicant’s existing qualifications at the Bachelor and Masters degree level.

The Tribunal has considered the applicant’s stated reasons for undertaking his current studies in Information Technology, however did not find his evidence with respect to his previous job searches in Pakistan, or the need for qualifications in multiple fields to be compelling. He told the Tribunal that he had made some applications to companies in Pakistan, but gave only one example of such an application, to a table and chair manufacturer. In the course of the hearing he gave evidence that he had been offered sponsorship with a company in Australia, but did not get the job because he lacked IT knowledge. Given the applicant’s immigration history, which is addressed further below, the Tribunal considers it more likely that the applicant has enrolled in his current courses of study for the purpose of extending his stay in Australia.
The applicant’s immigration history refers to both his travel and visa history. The applicant gave evidence that he has not had any visas refused other than the current application under review. There is no evidence before the Tribunal that he has not complied with the conditions of his visas.
The applicant told the Tribunal that he had been offered potential sponsorship by a company through the Regional Sponsored Migration Scheme (subclass 187) visa scheme. He stated this was processed by his agent. He stated he went through interviews for the job, but the company also wanted someone who knew accounting software. He stated that he had to withdraw from that sponsorship application as he was not successful in getting the job. When asked about the timing of this application, the applicant told the Tribunal he was refused the job after he completed his Masters degree. He confirmed that this visa application was not refused as he received a nomination, but the application was withdrawn and did not proceed to a decision.
The Tribunal confirmed with the applicant that he had read and understood the Delegate’s decision. In response to the concern raised by the Delegate that the applicant had not disclosed a nomination application for permanent residency, the applicant stated that the subclass 187 visa application was only an expression of interest. He stated that he has strong ties to Pakistan and his wife remains in Pakistan, hence he has no intention of staying in Australia permanently.
When asked further about any outstanding visa applications besides the application currently under review, the applicant stated that he has a 189 individual application, which the Tribunal understands to be a Skilled Independent visa (subclass 189). He said this is still pending. When asked further about this, he stated that it was an expression of interest only and not an application. The Tribunal notes that his s.359(2) response he indicated that he had no other outstanding visa applications and there is no other evidence of such an application on the Tribunal or Department files.
The applicant has previously held four Student visas and a Temporary Skilled Graduate (subclass 485) visa. Prior to the expiry of his subclass 485 visa, the applicant applied for the Student visa currently under review. Based on the evidence before it, the Tribunal considers the applicant has recommenced his studies from August 2017 onwards primarily to maintain residence in Australia, rather than because of genuine intentions to progress academically as a student or to enhance his career prospects on his return to his home country. Although the applicant has performed well as a Student since his arrival in Australia in September 2010, the Tribunal notes he is currently enrolled in a Diploma course and an Advanced Diploma course, below the level of his existing qualifications from both Australia and Pakistan. The applicant’s current courses are of relatively short duration and cost compared to his Bachelor and Master degrees and will provide him with qualifications at the vocational level, rather than at the higher education level. The applicant’s current enrolments will extend his time in Australia until 1 February 2021, which would bring his total time in Australia to over 11 years. Given the amount of time the applicant has now spent in Australia and the level of courses he is currently enrolled in, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence and to circumvent the intentions of the migration programme.
In reaching this finding the Tribunal has taken into consideration the applicant’s good record as a student up until his Masters degree, as well as his progress with his current studies despite his visa application having been refused.
While the applicant’s evidence with respect to his subclass 187 and subclass 189 visa applications may also indicate an intention to remain in Australia temporarily or to remain for purposes other than study, the applicant was keen to downplay the significance of each of these applications. While the applicant is able to apply for any visas which he may lawfully apply for from time to time, such applications may also be relevant to assessing his intention to remain in Australia only temporarily for the purpose of study. The Tribunal notes the applicant’s intention must be assessed at the time the application for review is being considered. The Tribunal notes the subclass 187 visa was withdrawn as the applicant was not successful in meeting the criteria for the relevant role, and the Tribunal does not rely on the evidence of this visa application given the applicant’s statement that it is no longer current.
The applicant however gave evidence that he has a current 189 visa application, although he again downplayed its significance, claiming it was only an expression of interest and not really an application. The Tribunal does not a copy of such an application, nor is there anyno written information before the Tribunal about a subclass 189 visa application, other than the applicant’s statement about his expression of interest. The Tribunal therefore does not rely on any evidence of these either of these other visa applications in reaching its conclusion of the applicant’s circumstances as a whole. Rather, the Tribunal regards the applicant’s immigration history as summarised in paragraph 38 of these reasons to of itself raise concern as to the applicant’s intentions to remain in Australia only temporarily.
For the sake of clarity, the Tribunal makes no adverse findings with respect to the following aspects of the applicant’s immigration history: clauses 14(a)(i) and (ii) and 14(b)(i), (ii) and (iv), but has concern regarding the factor contained in cl.14(b)(iii) of Direction No.69.
The Tribunal has also given regard to whether there is any other relevant matter or information, and finds there to be no other relevant matter to the assessment of the applicant's intentions to temporarily stay in Australia in addition to the matters covered already above. The Tribunal has considered all of the information provided by the applicant in support of the applicant's application.
On balance, the Tribunal is not satisfied that the information the applicant has provided regarding his circumstances in his home country, his potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters, are sufficient to be satisfied that on balance he is a genuine temporary entrant.
Rather, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further Student visa to extend his stay in Australia and for reasons other than those related to genuine study.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to 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.
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.

[2019] AATA 4438

8 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction