BAINS (Migration)

BAINS (Migration) [2020] AATA 6028 (19 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Khushvinder Singh BAINS
CASE NUMBER:  1722684
HOME AFFAIRS REFERENCE(S):          BCC2017/2736273
MEMBER:Gabrielle Cullen
DATE:19 August 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 19 August 2020 at 9:12am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa and study history – limited study and no completed course while on student visa – no study while holding temporary work visa dependent on wife’s visa – working for most of this period – enrolment in non-registered course related to employment – value of course to applicant’s future business plans – vague and inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359AA
Migration Regulations 1999 (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 7 September 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
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 applicant arrived in Australia on 10 October 2013 on a subclass 573 visa valid to 15 March 2017 to study the Diploma, Advanced Diploma and Bachelor of Business courses to 21 July 2017. Mid way though the visa he was then granted a subclass 457 temporary work visa as a dependent on his spouse’s visa on 18 November 2014 valid to 19 August 2017. He applied for the student visa to which this decision relates on 1 August 2017. He has departed Australia from 29 January 2015 to 18 February 2015, 2 January 2018 to 26 January 2018 and 18 February 2019 to 20 March 2019.
A Certificate of Enrolment attached to the current application of 1 August 2017 refer to the applicant studying a Diploma of Business from 7 August 2017 to 3 August 2018. The evidence indicates that he is now enrolled and studying an Advanced Diploma of Leadership and Management from 8 April 2019 to 4 October 2020. The evidence indicates that he ceased enrolment in the Diploma, Advanced Diploma and Bachelor of Business in 2014 around the time he was granted the dependent 457 visa.
In a statement addressing the genuine temporary entrant criteria submitted to the Department with his application for the visa the applicant claimed he wishes to undertake the Diploma of Business as it will assist him to start his own business in India. He claims that before coming to Australia he used to help his parents with not much understanding of the modern efficient ways of doing work and with this Diploma he will gain the extra skills and knowledge to manage his parent’s business. He indicated that on completion of the Diploma of Business he would return to India and outlines the skills he will gain from studying the course, why Australia is a good place to study and how he will finance his study and stay in Australia.
The delegate decided to refuse to grant the visa on 7 September 2017 because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned that the applicant was not undertaking the proposed course for the reasons he claims as he had not provided any details requiring the business skills he intends to acquire, why he did not continue with his previous plans to study a packaged course leading to a bachelor’s degree and why he did not pursue his education even though he was able to while holding the subclass 457 visa.
On 22 September 2017 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.
On 5 April 2019 the Tribunal wrote to the applicant a s.359(2) letter as follows
As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:
·enrolled in a registered course of study; and
·a genuine applicant for entry and stay as a student.
Accordingly, you are now invited to give, in writing, information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the ‘Request for Student Visa Information’ form which you can access by clicking on the link below.
The applicant was also provided with information as to how to access a printable copy of this form if they wished to return a hard copy. The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to ‘Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ and attached a copy.
On 23 April 2019 the applicant’s representative attached a COE indicating the applicant was enrolled to study an Advanced Diploma of Leadership and Management from 8 April 2019 to 4 October 2020 and he also made the following written submissions.
·The applicant has successfully completed his previous studies and is attending his classes and is a model student. In this regard he referred to attached certificates, but none were attached.
·Completion of this course will allow the applicant to progress in his professional field with possible employment opportunities with multinational companies in India and abroad.
·The applicant is currently studying at the Australian College of Professions as per the COE attached and his course coordinator is willing to be a reference regarding his efforts with his studies.
·He referred to completion of various degrees and said he attached certificates, but none were attached. He stated that the applicant is an honest, hardworking student and a member of multiple study groups.
·The applicant comes from a highly qualified and financially sound family who place strong importance on education and family values.
·The applicant does not have any negative circumstances in his home country.
·The applicant has a positive economic situation. The applicant is completely financially sound. The applicant has family assets back home in India.
·There is no political and/or civil unrest in India, the applicant's home country.
·The applicant has his entire family and friend circle residing in India.
·The applicant has significant reasons for not studying such a course in his home country, including the international exposure provided by completing an Australian education and/or qualification which will place him in a much better position in a professional framework.
·The applicant notes that completing an Australian qualification provides a substantial advantage in his employment prospects in India and other parts of the world as the applicant will have a substantially unique academic profile in comparison to other individuals in India who do not maintain the same international exposure.
·The applicant submits that gaining a highly respected world class academic qualification as an Australian education will substantially benefit his personal development, specific communication skills, and most importantly benefit his future employment prospects in India.
·The applicant bases his belief due to his first-hand experience of seeing his friends return to their respective home country and receive employment offers from firms due to their advantageous position of completing an Australian qualification.
·As such, the applicant has considered that completing an Australian qualification in his desired field will allow his to acquire a higher level of employment in comparison to counterparts who have studied the same course but in India rather than in Australia.
·The applicant does not have any military service commitments in his home country.
·The applicant has a perfect immigration record always abiding his visa conditions and never over-stayed in any country.
As to the value of the course to the applicant’s future he further submits
·This course will equip the applicant in his future endeavours of being in a managerial position with evidenced certification of leading and managing people.
·This course will indeed assist the applicant in gaining employment in his desired position in his home country.4
·The completion of Australian certification in leadership and management will increase the applicant's career prospects both in India, and globally.
·The completion of the Australian course will also inevitably increase the applicant’s remuneration and career prospects in India significantly as he will be in an advantageous position in comparison with his counterparts who do not maintain the same international exposure.
·The applicant strongly desires to acquire a role in higher management rather than a marketing role. The specific studies of a course solely on leadership and management will provide the applicant with extensive academic rigour.
On 12 June 2019 the Tribunal wrote to the applicant and invited him to attend a hearing on 4 July 2019. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212(a) and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.
Prior to the hearing the applicant provided evidence from his education provider dated 3 July 2019 indicating that he is currently enrolled in the Advanced Diploma of Leadership and Management, a statement of attainment from Hannay International College dated 25 June 2019 indicating he has successfully completed 8 units towards the Diploma of Business and an academic transcript from St Adam College dated 8 April 2019 indicating he had successfully completed a Diploma of Customer Engagement (not a registered course).
The applicant appeared before the Tribunal (differently constituted) on 4 July 2019 to give evidence and present arguments. His representative did not attend the hearing.
At the hearing applicant provided the following additional evidence relevant to the genuine temporary entrant criteria:
·He graduated from High School in 2013 in India and did a small course in computer basics and an English course
·He came to Australia in October 2013 to study a Diploma of Business, Advanced Diploma of Business leading to a degree.
·When asked why he applied for and decided to come to study in Australia; he responded that Australia is a nice country, it will give him more opportunities while he is working, and he can develop his skills. When queried, he said he was studying business management and he could work practically with his course. He said it was a great opportunity to study in Australia. When asked further as to why he was studying in Australia; he said after getting the education it might help him further in his future to start his own business or to help his father in his business. He then said he plans to start his own business on return and when asked what business; he said maybe a restaurant or a cafe or something bigger or maybe something relevant to farming as his family have farming land and they grow cotton and wheat. He said his father owns the farm and employs four to six workers as well as tractors, harvesting and cultivation machines.
·The applicant said he completed a Diploma of Management in August 2019 with Hanoi. The Tribunal (differently constituted) questioned this as it says he attained units in a Diploma of Business not that he had successfully completed a Diploma of Management. He then said he had completed a Diploma of Management, later said it was a Diploma of Business. When asked why he did not return to India on completion of that course, he said he wanted to study further, and he is currently working at Aldi and leaning much about business. He said he wants to obtain extra skills and explore his studies further.
·He said he had also completed a Diploma of Customer Engagement to give him extra skills while working at Aldi. He said he works as a store assistant at Aldi and started work there in 2015.
·He said he did not study when a dependent on his wife’s 457 visa, then she returned to India, so he decided to study. He said they were married on 8 July 2014 in Australia. When asked why he did not study in that period to 2017, he said because he had family issues. When asked for more detail he said his parents were not happy with him, he was stressed, and no one was talking to him. He said his wife’s parents had the same problem
·He said he confirmed he is still married to his wife who returned to India on 2 August 2017, due to family problems and he has a 3-year-old child in India with her as well. He said she had applied for a visitor visa, but it was rejected.
·The applicant confirmed he came to Australia to study a Diploma of Business Management, leading to a Diploma and Advanced Diploma of Business but he did not complete these courses he was enrolled in. He was married in July 2014 and became a dependent on his wife’s visa. He said she returned to India in 2017 and he decided to stay and study.
·He said after she left, he wanted to return to India but thought he should study so he could have a better future.
·The Tribunal asked him why he did not return to India with his son and wife when he claims he finished the Diploma of Business, especially as he claimed his plan was to set up some form of business back in India or assist his father on the farm and he had achieved a Diploma qualification. He repeated that he wanted to further his education which will help him in the future, and he might study for a degree and that will be a strong document for employment when he returns to India.
·The Tribunal raised with him that his evidence as to why he is studying the Advanced Diploma of Leadership and Management appears vague as to the value of the course to his future and how it will assist him on return to India. The Tribunal raised with him that his evidence appears vague as to his future and how the qualifications will assist him in the future. He said the diploma will help him obtain a job or set up a business. He said it will give him extra skills. The Tribunal raised with him that he had said he might go back and assist with the family farm and the Tribunal asked him why he did not already have enough qualifications to do that. The Tribunal questioned how an Advanced Diploma of Leadership and Management would help run his father’s farm and he referred to the labour they hire, and it may help to start up something new on the farm. The Tribunal raised with him that he sounded vague as to how the course would assist him to run the family farm.
·The Tribunal asked him whether he had made any other inquiries about sorts of jobs he could obtain in India on completion of the Advanced Diploma of leadership and management. He said he had not. The Tribunal raised with him that it had difficulties seeing how the current course had any real value to his future and to assist him to obtain employment. He responded that his family and friends are asking him to complete the course while he is in Australia. He later said that it would help to start his business and to lead and manage staff and the factors important to running a business.
·As to family in Australia; he said he has a cousin who is a permanent resident and his brother-in-law who is a citizen
·He repeated that after he finished the Advanced Diploma of Leadership and Management, he might pursue a degree or further courses. He said he was not sure.
·He said he had no military commitments or political or civil unrest concerns in India
Towards the end of the hearing the Tribunal raised its concern that he did not study between 2013 and 2017, he has only completed a Diploma of Business and Diploma of Customer Engagement in Australia, what value the Advanced Diploma of Leadership and Management would have to his future, why he cannot study an equivalent course in India, his strong work ties with Aldi in Australia and strong family ties. The Tribunal raised with the applicant that it may lead the Tribunal to find he is using the student visa program to remain in Australia rather than for genuinely studying. When asked whether he wanted to respond to these concerns, the applicant responded in the negative. He then said he would return to India on completion of his course in 2020. The Tribunal raised with him that was not consistent to what he previously said in the hearing, and he said will return to India and he hasn’t decided to stay on and study. When asked if he was certain; he said he will consult with his family and see if he will return to help his father on the farm, because that is what he first has to do on return to India
On 2 June 2020, the applicant was advised by the Tribunal that the previous member who was reviewing the case is no longer available and that the matter had been reconstituted to a different member. The applicant was advised that all documents and other material that were considered by the previous Member have been given to the current member, including material from the Department; recordings of any hearings and any submissions or other evidence provided to the Tribunal.
On 16 June 2020 the applicant was invited to attend a hearing on 20 July 2020. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal may assess whether he intends genuinely to stay in Australia temporarily, which was the reason for the delegate’s decision and referred to and attached Direction 69. The letter also noted that the Tribunal may assess whether the applicant is enrolled in a registered course of study and that not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review.
At the request of the Tribunal as to his course progress, the applicant resubmitted his academic record for the Diploma of Business dated 25 June 2019, indicating he had completed 8 competencies towards the Diploma of Business and a statement from his current education provider dated 7 July 2020 indicating that he has successfully completed 7 subjects towards the Advanced Diploma of Leadership and Management.
The applicant appeared before the Tribunal on 20 July 2020 to give evidence and present arguments. The Tribunal noted that the issue before it is whether he meets the genuine temporary entrant criteria as per cl.500.212. It outlined these requirements and Direction 69.
The applicant indicated he only has 4 subjects to complete to achieve the Advanced Diploma of Leadership and Management and will definitely return to India on completion of the course on 4 October 2020. He repeated on a number of occasions his intention to return on completion of his current course in October 2020.
The applicant noted he held a dependent 457 visa from 2014 to March 2017. He said his wife was a manager in a restaurant and she had to leave due to medical issues. He said he was going to depart with her but thought he should obtain an education before his return. He said his wife has applied for a visitor visa to visit him in Australia, but this has been denied.

As to why he came to study in Australia, he said he came to study a Bachelor of Business to improve his future. He said he was looking to expand or enter a business related to his family farm.
He confirmed he did not finish any courses studied while he held the dependent 457 visa and when asked why he said that his family did not approve of his wife, who he married in Australia and this caused mental stress. He also referred to the birth of his child in 2016.
The applicant said he had successfully completed the Diploma of Business and the Tribunal noted that the certificate submitted only referred to the attainment of certain units. He was given until close of busies son 21 July 2020 to provide evidence of successful completion of the course.
As to why he was not enrolled in a course of study from August 2018 to April 2019; he said he studied the Diploma of Customer Engagement required by his employer, Aldi.
As to the value of the Advanced Diploma of Leadership and Management to his future, he said he is thinking of opening a warehouse for the farming crops. He said there are many small farmers and he will gather them together and sell their produce. He said he may deal with the food companies to import and export the food they grow to other countries. He said he needs an education to start the business. He said he had had this idea since 2017 and was why he is studying.
The Tribunal raised with him its concerns as to his inconsistent and vague evidence as to the value of the course to his future. It noted that at the start of the hearing in 2019 he said he was going to use the skills learned to open a café and restaurant and then referred to a business related to his family’s farm. It also noted that in his response to the 2019 s.359(2) letter he said he will use the skills learned in the course to obtain a high-level managerial position. The Tribunal also referred to his vague evidence at the 2019 hearing as to the type of farming business he would run. The Tribunal raised concerns as to whether he was truthful as to why he is studying and raised with him that it may expect he would be consistent as to his evidence especially as to the value of the course to his. The applicant said he was a bit off at the last hearing
He said he his family have a 30/35-acre farm. He said it grows vegetables rice and mustard seeds. The Tribaunl questioned why when asked at the previous hearing he did not know the size of the farm and said it grew wheat and cotton. He said the latter are the winter crops and he was confused between hectares and acres.
The Tribunal indicated that it was concerned that he had been in Australia since 2013, had said he came to Australia to study in 2013, was able to study as the holder of a subclass 457 visa but had not successfully completed any course. He again referred to the Diploma of Business and Diploma of Customer Engagement. He said he had almost completed the Advanced Diploma of Leadership and Management.
He said he currently worked at ALDI where he has worked since 2015.
The Tribunal raised with the applicant via s.359AA information in the PRISMS record as to his lack of course completion, outlining the courses enrolled in and not completed, that he only partially competed the Diploma of Business studied within the enrolled time from August 2017 to August 2018, that he has not enrolled in a registered course from August 2018 to April 2019. It outlined the relance in regard to whether he is a genuine student and genuine temporary entrant. In response the applicant said his current course finishes in 2 months, and he does not want a refusal decision against his name.
The applicant said there are no civil or political reasons which would act as a disincentive to return
The applicant was given until 21 July 2020 to provide evidence from his education provider to support his claim he successfully completed the Diploma of Business and evidence as to the start and finish dates of the Diploma of Customer Engagement.
He subsequently provided evidence that as at 7 July 2020 he has successfully achieved 7 competencies towards the Advanced Diploma of Leadership and Management and resubmitted the academic record with regard to the Diploma of Business dated 26 June 2019 indicating he achieved 8 competencies towards the Diploma. No information was provided as to the length and timing of the Diploma of Customer Engagement.
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 meets 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.
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.
As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to India. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. The Tribunal accepts that study in Australia is highly regarded and it accepts his reasons for not studying in his home country. While there is no evidence that the applicant personally holds property, the Tribunal accepts his evidence that his family are financially sound and have assets in India. The Tribunal accepts the applicant’s wife and minor child as well as the vast majority of his family and friend circle live in India, other than his cousin and brother-in-law who live in Australia. It accepts that his wife and child have been denied visitor visas to enter Australia. The Tribunal therefore accepts that these circumstances in India are strongly indicative of a person who is only a temporary entrant and wishes to return to their country.
The Tribunal accepts that the applicant is currently enrolled in an Advanced Diploma of Leadership and Management from 8 April 2019 to 4 October 2020, completing subjects and is due to complete this course on time. The Tribunal also accepts he was enrolled in a Diploma of Business from 7 August 2017 to 3 August 2018. While he has repeatedly claimed he successfully completed this course, he has been unable to provide documentation from the course provider to confirm this, only providing a statement that he achieved competencies in 8 units dated 25 June 2019, despite a number of requests by the Tribunal for documentary evidence of course completion. He also provided evidence he successfully completed a Diploma of Customer Engagement required for his work with ALDI on 8 April 2019 but has not produced any documentation when requested by the Tribunal as to the time frame studied and it appears not to be a registered course for the purposes of study in Australia and the grant of a student visa. While the Tribunal views his current enrolment and successful completion of subjects in the Advanced Diploma of Leadership and Management, completing a substantial part of the Diploma of Business and a Diploma of Customer Engagement indicative of a genuine student, enrolment and completion of subjects in a course and completion of a non-registered course are only two of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.
The above information indicates the applicant arrived in Australia in October 2013 on a subclass 573 student visa to study a Diploma, Advanced Diploma and Bachelor of Business, a period of nearly 7 years. Of concern is that in the period he has been in Australia he is yet to successfully complete any course, except for the non-registered Diploma of Customer Engagement in 2019 required for his employment with ALDI. While the Tribunal accepts that from 18 November 2014 to 19 August 2017, he held a subclass 457 dependent visa and is not required to study as a condition of that visa, he has indicated he repeatedly came to Australia to study to improve his future and the Tribunal expects that if he was genuine as to his wanting to come to Australia to study he would have continued to study during this period. As reason for his lack of study in this period he has indicated that he did not study due to family issues as he was stressed as neither his nor his wife’s family were happy with the marriage and due to the birth of his child in 2016. The Tribunal does not accept these as reasons as to why he could not study in this period, especially as the evidence from the applicant was that he has worked at Aldi since 2015.
In particular, since his application for the current visa on 1 August 2017, as raised with him, he has not successfully completed any registered course, only a non-registered course for his employment with Aldi, except for the subjects outlined above. Further, of particular concern is his lack of enrolment in a registered course from August 2018 to April 2019. In response he said he was enrolled in the Diploma of Customer Engagement but was unable to provide evidence as to the length of that course and in any event that course is a non -registered course not meeting the requirement of enrolling in a registered course. He said the course was required for his work with ALDI in Australia which questions the value of this course to his future in his home country, rather it appears he was studying to continue his employment and connection to Australia.
The Tribunal views his lack of enrolment, and successful completion of courses in the manner outlined above since he arrived in Australia in 2013 indicative of a person seeking to maintain residence rather than as a genuine student.
Further, the Tribunal, for the reasons below, is not satisfied on the evidence before it that he has provided credible evidence as to why he has undertaken the current and past courses he has and the value of his study to his claimed future in his home country. It adds to the Tribunal’s finding that he is using the student visa program to maintain residence not as a genuine student.
Firstly, he provided vague and inconsistent evidence as to why he enrolled in the Diploma of Business to the Department in 2017. In a statement addressing the genuine temporary entrant criteria submitted to the Department he said that the Diploma of Business will assist him to start a business and he always wanted to do something of his own. He then referred to his father having a farming business. He said the course will help him manage staff in his business and he said he will return on its completion to start his business. Of concern is that he did not explain or provide any details as to the business he will start. The Tribunal views his evidence as vague and lacking in detail, particularly as the statement was 2 pages in length and the Tribunal expects if he was truthful as to studying for his future business he would have provided more detailed evidence as to the type.
Further, he has provided inconsistent evidence as to why he is studying the Advanced Diploma of Leadership and Management and its value to his future. The representative in his submission referred to the applicant studying this course to obtain a managerial position, to achieve high level employment and gain employment in firms. In contrast at the 2019 hearing, the applicant referred to opening his own business and when asked what business he said maybe a restaurant or café or something bigger or maybe something relevant to farming land as his family grow cotton and wheat. When the Tribunal (differently constituted) raised concerns as to his vague evidence as to the value of the course to his future he said he might go back and assist with the family farm or set up a business. He also said he might stay, and study further and then said he would not and would return to India on completion of the Advanced Diploma course. He also said he has to help his father on the farm on return. At the Tribunal hearing held on 20 July 2020 when asked the value of studying the Advanced Diploma of Leadership and Management to his future he said he is thinking of opening a warehouse for the faming crops. He said there are many small farms and he will gather them together to sell produce and deal with companies to export the food. He said he needs an education to start the business and said he had had this idea since 2017 and it is why he is studying. As raised with the applicant the Tribunal views the applicant’s inconsistent evidence as to why he is studying the Advanced Diploma in Australia to undermine his claim he is a genuine student studying for the reasons he claims. This is particularly so as he said at the Tribunal hearing in July 2020 that he had had the warehouse idea since 2017. The Tribunal is of the view if this was the case, he would have consistently provided evidence as to opening the warehouse to the Department and Tribunal and at both hearings, not just the hearing in 2020.
Further undermining his claim, he is studying for the for his future in his home country is his inconsistent evidence as to his family farm, this is particularly so as he said at the 2020 hearing that his farm is linked to the business he wishes to open. At the 2019 hearing he said his family farm grows wheat and cotton but when asked at the 2020 hearing the same questions he said it grows vegetables, rice and mustard seed. When the concern was raised, he said wheat and cotton are the winter crop. Further, when asked the size of the farm at the 2019 hearing his evidence was vague as he said he did not know whereas at the 2020 Tribunal hearing he said it was 30/35 acres. When the concern was raised, he said he was confused between hectares and acres. However, the Tribunal is of the view if his family had a farm he would be able to provide consistent evidence as to the crops grown whether in winter or summer and as to the size of the farm at both hearings. His inconsistent evidence as to the farm undermines his claim he is studying for the reasons he claims.
The applicant’s inconsistent evidence between the hearings and vague evidence as to the value of the courses to his future adds to the Tribunal finding that he is not studying for the reasons he claims and using the student visa program to maintain migration other than for any value to his future.
As to the applicant’s immigration history, the Tribunal is of the view there is nothing which indicates that he does not genuinely intend to stay in Australia temporarily.
sIn making its decision the Tribunal has considered all the evidence before it, including that he is currently studying the Advanced Diploma of Leadership and Management and achieving course progression, he successfully completed 8 subjects towards the Diploma of Business and successfully completed the non-registered Diploma of Customer Engagement, he has very strong family ties in India, his family have assets in India and are financially secure, all his reasons for studying the Diploma of Business and Advanced Diploma of Leadership and Management, that he claims he will depart, when able, once he finishes the Advance Diploma of Leadership and Management and all the other matters he has raised; however for the reasons outlined above does not accept he is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.
The Tribunal is therefore not satisfied that he is a genuine applicant for entry and stay as a student and is of the view that the student program is only being used to maintain ongoing residence.
Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Gabrielle Cullen
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 ofllowing 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 ofllowing 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 ofllowing 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 ofllowing 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.

[2020] AATA 6028

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction