Arora (Migration)

Arora (Migration) [2021] AATA 3773 (16 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Jaspreet Kaur Arora
Mr Mandeep Singh Arora
Master Amarveer Singh Arora
Miss Antarpreet Kaur Arora
CASE NUMBER:  1930415
HOME AFFAIRS REFERENCE(S):          BCC2019/4452080
MEMBER:Michael Biviano
DATE:16 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 16 September 2021 at 9:30 am
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa––applicant is seeking to undertake low level VET courses – applicant has completed high level qualifications back in India – in Australia for a long period time – no strong incentive to return to her home country – current employment history –use the student migration program to maintain ongoing residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500.212, 500.311
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 Home Affairs on 25 October 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 5 September 2019. At the time of application, Class TU contained 2 subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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) for the reason that she was not a genuine applicant for entry and stay as a student because she did not intend to stay in Australia temporarily.
Further, as the applicant had not met the requirements of cl.500.212(a) of Schedule 2 to the Regulations, the delegate determined that her spouse and children, the secondary applicants, had not met the requirements of cl.500.311 of Schedule 2 to the Regulations and the secondary applicants did not meet the criteria for the grant of a student visa.
The applicants appeared before the Tribunal on 17 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicants were assisted in relation to the review by their registered migration agent.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary, to enable the examiner to establish the relevant facts.
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 was 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, 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.
The applicant is a 38-year-old Indian National who came to Australia on 4 July 2019 pursuant to a Visitor (Subclass 600) visa which was granted on 7 March 2019 and valid until 4 October 2019.
The decision record of the Department of Home Affairs dated 25 October 2019, which was provided to the Tribunal by the applicant, confirms that the applicant made the current application for a Student (Class TU Subclass 500) visa on 5 September 2019 (Decision Record). The Decision Record confirms that prior to coming to Australia the applicant had previously obtained a visitor visa on 4 November 2016 which was valid until 4 November 2017. The applicant gave evidence that in July 2017 she came to Australia with her spouse to visit her brother-in-law whose wife had given birth in Australia to a baby boy.
At the time of the current visa application the Decision Record provides that the applicant was enrolled to undertake a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management which would conclude on 3 January 2022 at the Meridian Vocational College.
Prior to the hearing, the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student visa information about the courses she was studying and information about her entry and stay in Australia in accordance with s.359(2) of the Act (Response). In addition to the Response the applicant filed supporting documentation which comprised:
a.a Certificate III in Commercial Cookery from Meridian Vocational College dated 4 December 2020 together with a record of results and confirmation of course completion;
b.COE No. AD764230 for the applicant to study a Certificate IV in Commercial Cookery at Meridian Vocational College from 12 October 2020 to 10 May 2021 which was created on 8 August 2019;
c.COE No. AD764562 for the applicant to study a Diploma of Hospitality Management at Meridian Vocational College from 7 June 2021 to 3 January 2022 which was created on 8 August 2021;
d.transcripts of results for the applicant undertaking the study of Certificate IV in Commercial Cookery dated 17 February 2021;
e.payment plan for studies regarding Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and Diploma in Hospitality Management; and
f.enrolment confirmation at Meridian Vocational College dated 17 February 2021.
Further on the day of the hearing the applicant also submitted further documentation to the Tribunal including:
a.documentation comprising electricity bill, municipal property tax return and registration certificate and income tax return for the applicant’s spouse confirming that he trades as AV Motors;
b.submissions from the applicant’s representative undated (Submissions);
c.transcript of the results dated 7 May 2021 for the applicant’s studies in the Certificate IV in Commercial Cookery;
d.enrolment confirmation from Meridian Vocational College dated 7 May 2021 confirming that the applicant’s expected completion of the Certificate IV in Commercial Cookery is 10 May 2021 and that the applicant is enrolled to undertake a Diploma of Hospitality Management from 7 June 2021 to 3 January 2022; and
e.receipt of payment of invoices for undertaking studies in Certificate III, Certificate IV of Commercial Cookery and Diploma of Hospitality Management.
Prior to coming to Australia, the applicant had completed a Bachelor of Arts at Punjab University between 4 July 2000 and 25 April 2003. She also completed a Master of Arts (Political Science) at Punjab University between 6 July 2010 and 27 April 2012. From April 2012 through to May 2019 the applicant worked as a kindergarten teacher at the Sunrise Nursery & Pre-Nursery School. The applicant in the Response confirmed that her annual salary in the position was approximately A$2,000 per annum. The applicant claimed in evidence that she had previously come to Australia in 2017 for a period of approximately one week with her spouse on a visitor visa for the purposes of visiting her brother-in-law whose wife had given birth here in Australia.
In 2019 the applicant returned to Australia with her spouse and her 2 children who are twins and who are all secondary applicants to this application for a student visa. The applicant gave evidence that she had come to Australia for the purposes of visiting her brother-in-law in 2019 and her intention was to return home at the conclusion of that trip. The applicant gave evidence there was no plan to undertake any study in Australia and that she had not undertaken any research to that extent. She claims that while she was here she visited a number of different restaurants and came to observe the quality and promptness in which food was served. She discussed that issue with her brother-in-law and the applicant previously had a hobby of cooking and wanted to further develop that hobby into a skill and learn Western-style cooking. After having discussions with her brother-in-law he convinced her to use the opportunity she had in Australia to undertake study if she wished to further develop her cooking skills.
It is important to note the applicant came to this country with her 2 children and her spouse and based on her evidence the Tribunal accepts that she came to this country on a visitor visa for the purpose of travel of visiting her brother-in-law and family and staying here for a short period of time and that she did not come to this country for the purpose of study. The Tribunal accepts that she has not used the visitor visa for a purpose which is inconsistent with the purpose for which the visa was granted.
The applicant having decided to study in Australia gave evidence that she has completed the Certificate III and Certificate IV in Commercial Cookery and is now studying the Diploma of Hospitality Management which is expected to conclude on 3 January 2022.
The applicant in the Response outlined her intentions with regard to studying hospitality courses. The Response stated:
Hospitality’s potential as a career path is undeniable. Along with offering more than merely financial benefits, it is an ideal choice if one’s goals are stability and growth. The demand for hospitality jobs will never run out as long as there are people and food. This makes hospitality one of the most stable industries today. It also makes hospitality one of the most ideal providers of lasting and solid careers. So, I have decided to pursue my Certificate III, Certificate IV and Diploma in Hospitality Management in Meridian Vocational C ollege, Adelaide, Australia as it will not only help me to gain international exposure but will also provide me better understanding various cultures and skills which are required to perform on professional grounds along with a globally recognized Qualification. Further in this regard, I discussed the interest of my studies with my family and they supported my decision to continue my studies ahead. Pursuing this course will ensure me a secure, rewarding and successful employment in an industry that is expanding and vibrant. If I talk about my interest and present scenario hospitality Industry is the most booming sector. In today’s growing market, an international degree plays a vital role which offers good career options worldwide.
Further the Response in relation to the applicant’s intentions to gain employment in India, post completion of her studies states:
I am highly motivated and ambitious in pursuing my career in hospitality management in India. By studying this program, I hope to extend my vision. After completion of this, I will return to India and will pursue my career there. Nowadays, Indian economy is growing at a faster rate. Numbers of top notch multinational corporations are establishing their centers in India. As per my job research, with my qualification and knowledge gained in Australia, I believe I can get a starting salary approximately in the range of INR 6,00,000 to INR 8,00,000 per annum in India and I can work in corporates having five and seven star resorts and hotels like JW MARRIOTT, PARK PLAZA, C LUB MAHINDRA, SOTC, YATRA etc. and event management companies like LEMON LEAF EVENTS, EVENT M, STARBIZ INDIA, SURPRISE EVENTS INDIA, GLOBAL EVENT and many more and as an Event Planner, Operations Manager, Exhibition planner and coordinator, Resort manager, Amusement Park manager. My decision to educate myself from Australia is to gain knowledge that is not easily available in India and have a competitive edge. Considering my dream to work with top leading firms and provide excellent services along with improving skills. The qualification from Australia will help me to be the front-runner among job seekers in this field. As overseas education helps us to get broader perspective and opens up for the globalization and gives us the immense exposure to the global markets. Moreover, I also read online testimonials of Indian students who are already studying there. In future I wants to start my own restaurant business in my home country. thanks
The income that the applicant has identified a likely starting salary in India is INR 6,00,000 to INR 8,00,000 per annum, which equates to approximately $11,000 to $14,700 per annum.
However the applicant gave evidence that it was her intention to open a new restaurant in India with her brother and father. She gave evidence that they were looking for an area to establish a business in an industrial area which would be large enough to have 160 to 200 seats and would require at least 2 chefs. The applicant claimed that the income she would expect to receive from that role would be approximately A$2,000 per calendar month from operating her business of managing her own restaurant.
The applicant was questioned as to whether or not she would be able to commence a restaurant with her current qualifications holding a Certificate III and Certificate IV in Commercial Cookery. The applicant conceded that there was no requirement for her to hold a Diploma of Hospitality Management to establish her own restaurant in India, however, she did give evidence that undertaking Hospitality Management would provide her with greater skills to be able to operate and manage her own restaurant together with providing different roles and scenarios that she would meet in managing her own restaurant.
The applicant gave evidence the Diploma would improve her skills to be able to manage a business. She claimed that she wanted to be a ‘very qualified person’ which the Tribunal understood to mean that she wanted to have appropriate qualifications. In any event the Tribunal notes that the applicant has completed high level qualifications in India and that she has also completed the cooking courses component, being the Certificate III and Certificate IV in Commercial Cookery, and would be able to commence a restaurant if she so desired in India. However, having regard to all the above matters the Tribunal considers that the course that the applicant is currently studying, that is the Diploma of Hospitality Management, in light of her current qualifications and experience would only marginally improve her career prospects and remuneration back in India.
The applicant gave evidence that whilst in Australia she has worked briefly in the following roles from November 2019 to June 2020: she worked as a cook at the Say Kitchen, which is the College’s restaurant on a volunteer basis as part of her job placement and then from January 2020 to October 2020 at the Pepper & Corn Mexican restaurant as a cook also on a volunteer basis. Further she worked as a housekeeper at Hotel Oakes from March 2020 to January 2021 earning a salary of A$7,600 per annum which equated to approximately A$130 a week. From January 2021 the applicant has worked as a kitchen assistant at Joe’s Café earning between A$400 to A$600 per week working 22 to 25 hours per week.
The applicant gave evidence that her spouse is currently working in Australia and he works in the position of delivering home appliances. He works on average 5 days a week and earns between A$800 and A$1,000 per week. Having regard to their joint earnings the applicant and her spouse earn between A$1,200 and A$1,600 per week which is a high level of income and which would provide the applicant and her spouse with a substantial financial incentive to remain in Australia.
The Tribunal notes that from the applicant’s Response that she has an expectation of receiving an income back in India of A$20,000 to A$25,000 per annum. The applicant has given that assessment based on evidence that that is what she would earn from a restaurant if it was established in India and in the Response from working in a 5 to 7 star hotel or resort in India. However the statement was inconsistent with her earlier statement in the Response about earning A$11,000 to $14,700 per annum. The applicant in evidence claimed she expects to earn approximately A$2,000 per calendar month from her business.
The Tribunal notes from the applicant’s evidence and from the Response that the applicant has an expectation of earning A$2,000 per calendar month. The Tribunal notes that if the applicant is able to remain in Australia on a full-time basis then the minimum wages in Australia if she obtained full-time employment as at 1 July 2021 as set out by the Fair Work Commission is $772.60 per week which equates to A$40,175.20 per annum.[1] Given the level of wages in Australia are substantially higher than those that she could expect to earn in India as discussed above, the Tribunal provides that it would not provide the applicant with a substantial financial incentive to return home and instead provide her with a substantial financial incentive to remain in Australia.
[1] National Minimum Wage Order 2021 – PR729671.

It is common knowledge that the economic conditions in India are substantially better than those in India and that would also provide a substantial financial incentive for the applicant and her family to remain here in Australia rather than to return home.
The applicant has changed her career and study pathways initially from undertaking arts to political science to teaching to cooking and now to hospitality management. The course the applicant is currently studying is not connected to the previous courses she has completed and career pathways that she has undertaken and they are not complementary to each other. They do not lead to a career path or position in employment. It is apparent from the applicant’s evidence that she does not intend to utilise her arts and political science qualification or teaching qualification in the future notwithstanding that she has obtained high level qualifications back in India.
The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However this is not the case where the applicant has merely decided to change careers through undertaking short vocational education training (VET) courses. The courses in which the applicant has enrolled in in Australia and is currently studying are all short VET courses and they do not reveal any progression in her studies. Further the applicant has previously obtained a Bachelor’s degree and Master’s degree in India and her present course of study, the Diploma of Hospitality Management, is inconsistent with her level of education.
The applicant has in the Response outlined the reasons why she preferred to undertake studies in Australia rather than at home in India. The Response states:
Australian qualifications are recognized by employers and leading educational institutions in many countries around the world.
The course syllabus is comprehensive and therefore, easy to learn even for the students from a different subject background.
International qualification plays a vital role to expand my professional horizons in my relevant field and will help me to grow academically, personally and prepare me for future.
Notwithstanding that the courses that the applicant has undertaken in Australia are more comprehensive and easier to learn and provide her with an international qualification to enable her to develop further in the future, the Tribunal does not accept the applicant has a reasonable motive to undertake this course here in Australia which is a low level VET course rather than undertaking it in India. There is nothing preventing the applicant from undertaking a course in India relating to hospitality management if it is required for the purposes of developing her skills if she desires to either work in a hotel or set up her own restaurant.
The Response does not indicate the applicant is unable to undertake hospitality management studies back in India and in the GTE Statement provided to the Delegate she outlined a number of reputable institutes that conduct courses in hospitality management. In those circumstances the Tribunal finds there is no reasonable motive for the applicant to undertake these studies in Australia rather than in India.
The applicant prior to coming to Australia in 2019 had previously been to Australia in 2017 for a period of a week. Whilst the applicant has been in Australia since her arrival in July 2019 she has not returned home. The applicant gave evidence that she had been to Europe for a week in September 2018. Ordinarily the applicant’s conduct would be consistent with a person wishing to stay in this country permanently. However for a large part of the time that she has been in Australia there have been travel restrictions as a consequence of the COVID-19 pandemic and consequently the Tribunal does not make any adverse findings about the applicant’s travel history .
The applicant gave evidence that she does not own any assets back in India but her spouse has a commercial shop worth approximately A$90,000 and he has a residential house worth A$100,000 back in India. The total value of the properties is A$190,000 which would ordinarily provide a substantial financial incentive to return home. The applicant’s spouse also has a business back in India, but it is being successfully managed while he is in Australia. However when compared with the level of income that both the applicant and her spouse could earn here in Australia, the Tribunal finds those assets only provide a marginal incentive for them to return home.
The applicant both in the Response and in evidence did not have any concerns about returning home to India and she had no concerns about military service commitments or political and civil unrest in her home country. The Tribunal finds they do not present as a significant incentive for her not to return home.
The Tribunal finds based on the applicant’s evidence and circumstances in her home country including the assets that she and her spouse have in India together with her education and support from her family relative to others in that country, she is in a good position and it would not provide a significant incentive for them not to return home.
The applicant gave evidence that she was married in 2004 and that she and her spouse have 2 twin children who are secondary applicants to this application. In the circumstances the Tribunal accepts they are not in a relationship of concern for a successful visa outcome. The applicant gave evidence that she and her spouse have been supported here by their families.
The applicant has ties both to Australia and to India. The applicant has family back home which comprises her mother, father, brother and parents-in-law. She has not seen them since July 2019 but she keeps in regular contact with them by phone calls, WhatsApp and other social media platforms. Whilst that would ordinarily provide the applicant with a substantial incentive to return home she intends remaining in Australia for at least a further 4 months and her spouse has his cousin here in Australia with whom he is relatively close. However he lives in Townsville and they do not see each other regularly but they do remain in contact. Further the applicant’s children are undertaking Year 10 here in Australia and both the applicant and her spouse are in stable accommodation. In light of their connection to Australia and their high level of income, the Tribunal considers that her ties to India do not provide a significant incentive for her to return home.
The applicant’s ties to Australia are substantial. As discussed above she has her spouse’s cousin here in Australia. They are working and earning a high level of income. They are in stable accommodation. Her children are undertaking secondary schooling at Year 10 level. She has college friends with whom she gets on well and it is apparent that she is developing roots and ties to Australia. Considering those arrangements the Tribunal considers that the ties she has to Australia would provide her with a strong incentive to remain here rather than to return home.
The applicant has not identified any visa refusals or visa cancellations in Australia or elsewhere. There is nothing before the Tribunal from the Delegate’s Decision Record to indicate the applicant has experienced any other visa refusals or immigration issues either in or outside of Australia.
The applicant has made the decision to apply for a student visa in circumstances where she has completed high level qualifications back in India and is seeking to undertake low level VET courses here in Australia. The Tribunal considers that the applicant has not undertaken these courses for the purposes of advancing her career but rather to maintain ongoing residence here in Australia and to remain here with her spouse’s relatives. Based on the above matters the Tribunal is not satisfied the applicant has made an application to gain a student visa to study here temporarily.
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).
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.
Further, as the applicant has not met the requirements of cl.500.212(a) of Schedule 2 to the Regulations, then the secondary applicants do not meet the requirements of cl.500.311 of Schedule 2 to the Regulations and he does not meet the criteria for the grant of a student visa.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Michael Biviano
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.

[2021] AATA 3773

16 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Intention

Statutory Construction