Bandara (Migration) - [2020] AATA 2889

Bandara (Migration) [2020] AATA 2889 (26 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Herath Mudiyanselage Lasitha Bhanuma Bandara
Ms Manasha Sahindi Munasinghe
CASE NUMBER:  1815175
HOME AFFAIRS REFERENCE(S):          BCC2018/1247401
MEMBER:David Thompson
DATE:26 April 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 26 April 2020 at 5:45 pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – graduate applicant studying Vocational courses – applicant’s family and community ties to his home country – relative esteem of trade qualifications in Sri Lanka – change of career path – plans to establish trade business – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359; Direction No 69
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 9 May 2018 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 15 March 2018. At the time of application, Class TU contained two 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she was not satisfied that the applicant intended genuinely to stay temporarily in Australia..
The applicants appeared before the Tribunal on 24 July 2019 to give evidence and present arguments.
The applicants were assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 the requirements of cl.500.212.
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.
Background
The applicants are citizens of the Democratic Socialist Republic of Sri Lanka. Before coming to Australia, the applicant obtained a Bachelor of Business Administration and a professional Certificate in Business Accounting and worked as an accountant. He gave evidence at hearing that he first arrived in Australia on 20 February 2017, as a dependant on his wife’s subclass VC-485 Skilled –Graduate (Temporary) visa. His wife’s VC-485 visa was valid until May 2018. On 15 March 2018 the applicants applied for subclass TU-500 student visas so that the applicant could undertake studies in the building trades (specifically, painting and decorating and wall and floor tiling). That visa application was refused, and the applicants have applied to the Tribunal for a review of that decision.
Apart from his oral evidence at hearing, the applicant provided a quantity of documentary evidence to the Tribunal. The Tribunal has considered all of those documents. They are not all relevant to the issues before the Tribunal. To the extent that they are relevant, they are as follows:
a.the delegate’s decision record dated 9 May 2018;
b.a completed Request for Student Visa Information form, provided in response to a request made by the Tribunal pursuant to s.359(2) of the Act;
c.a confirmation of the applicant’s account balance dated 3 June 2019 and issued by Sampath Bank LLC, a Sri Lankan bank;
d.a vehicle inspection and valuation report dated 28 May 2019 and issued by De Silva Auto Care of Ratnapura, Sri Lanka, in respect of a Suzuki Alto LXI 880 motor car;
e.an extract from the applicant’s father’s entry in the Sri Lankan Register of Births;
f.the applicant’s birth certificate;
g.three deeds of transfer of lands in Sri Lanka to Keerthi Munasinghe dated 30 September 2011, 22 June 1999, and 16 January 2013;
h.an agreement for a lease of premises at 77 Tissa Road, Hambantota, Sri Lanka between Keerthi Munasinghe and Union Assurance PLC dated 8 April 2014;
i.a deed of gift of real property at Moratumulla, District of Colombo, Sri Lanka made on or about 29 March 2005 by Munasinghe Gunadasa in favour of Keerthi Munasinghe;
j.two Sri Lankan certificates of registration of motor vehicles in the name of Keerthi Munasinghe dated 10 October 2014 and 12 June 2019 respectively;
k.the birth certificate of Keerthi Munasinghe;
l.the birth certificate of Manasha Sahindi Munasinghe, the second applicant in this review application, stating Keerthi Munasinghe as her father;
m.a Certificate in Business Accounting issued dated 2008 and issued in respect of the applicant by the Chartered Institute of Management Accountants;
n.a degree certificate dated 9 May 2014 issued by the University of Ruhana, Sri Lanka, recording conferral of the degree of Bachelor of Business Administration on the applicant;
o.a Faculty of Management and Finance, University of Ruhana, Internship Record Book issued to the applicant and containing entries by various persons made on various dates between May and August 2013;
p.a membership certificate dated 31 May 2019 issued by the St Aloysius College2006-2010 Old Boys Association, certifying the applicant’s membership and containing a testimonial as to his activities for the association;
q.an email dated 19 February 2019 from Perth College of Business and Technology (PCBT) to the applicant regarding issues with the registration of its Certificate III in Painting and Decorating course and changes to enrolments resulting from them;
r.a statement of attainment issued by PCBT and dated 7 April 2019 in respect of components of the applicant’s Certificate III in Painting and Decorating course;
s.a letter of attendance from PCBT in respect of the applicant, dated 29 May 2019;
t.a set of tax invoices dated 10 April 2018, 3 August 2018, and 31 March 2019 issued by PBCT to the applicant for fees and other charges in relation to the Certificate III in Painting and Decorating and Certificate III in Wall and Floor Tiling courses, showing payment of all such fees and charges;
u.a PBCT transactions ledger in respect of the applicant printed on 29 May 2019;
v.a letter dated 19 April 2017 from Pangulf Shipping & Logistics LLC (Pangulf), of Dubai in the UAE, regarding the applicant’s employment by that company;
w.a letter dated 13 July 2016 from Pangulf to the applicant regarding his salary and other benefits for work with that company;
x.extracts from the applicant’s mobile telephone accounts for the period 3 January 2019 to 2 May 2019;
y.the applicants’ marriage certificate dated 5 January 2017;
z.a statement of purpose made by the applicant dated 4 June 2019;
aa.Confirmation of Enrolment (CoE) A7915B72, in respect of the applicant’s enrolment in a Certificate III in Wall and Floor Tiling course offered by PCBT between 22 March 2019 and 1 May 2020;
bb.CoE 988DD620, in respect of the applicant’s enrolment in a Certificate III in Painting and Decorating course offered by PCBT between 2 May 2018 and 1 March 2020;
cc.copies of online articles from 2019 and 2020 regarding the state of the construction industry in Sri Lanka;
dd.a statement of attainment dated 11 March 2020 and issued by PCBT regarding the applicant’s completion of components of his Certificate III in Wall and Floor Tiling;
ee.a PBCT transactions ledger in respect of the applicant printed on 11 March 2020;
ff.a letter from PCBT dated 11 March 2020 confirming the applicant’s enrolment in Certificate III in Wall and Floor Tiling;
gg.a letter to the applicant dated 11 March 2020 from PCBT offering him a place in Diploma of Leadership and Management course, to be offered from 8 June 2020 to 7 June 2021;
hh.a letter to the applicant from Achira Builders (Pvt) Ltd dated 25 February 2020 offering him employment as a team leader on his return to Sri Lanka after his studies in Australia have been completed; and
ii.a letter from the Commonwealth Bank of Australia dated 4 June 2019 confirming the applicant’s bank account details and stating his bank balance.
The Tribunal has also had regard to the applicant’s records in the Provider Registration and International Student Management System (PRISMS), and has read and considered the Departmental file in this matter. That file contains a number of relevant documents not mentioned above, namely:
a.the applicant’s Statement of Purpose dated 11 March 2017 (an earlier version of the document noted at paragraph 12(z) above);
b.a letter from the Commonwealth Bank of Australia dated 12 March 2018 confirming the applicant’s bank account details and stating his bank balance; and
c.a short Statement of Purpose made by the second applicant, dated 15 March 2018.
The applicant’s circumstances in his home country
The applicant gave evidence at hearing that, apart from his wife, his whole family lives in Sri Lanka. He also stated that he is regular contact with his immediate family – his parents and his sister – almost every day, by telephone and video call. The documents referred to in paragraph 12(x) above tend to corroborate this, in that they show a total of 151 international calls being made in the 120 days between 3 January 2019 and 2 May 2019. The applicant and his wife have only made one visit to Sri Lanka since the applicant arrived in Australia in February 2017, but he gave evidence at hearing that his wife’s parents visited from Sri Lanka in January 2018 and that his sister and her family came to Australia to visit the applicants in January 2019. The applicant has also provided some evidence of community involvements in Sri Lanka, in the form of the document noted at paragraph12(p) above regarding his activities as a member of his school’s Old Boys’ Association.
The applicant was asked at hearing about any assets he might have in Sri Lanka. He gave evidence that he owns a car there, although it is registered under his father’s name. As evidence supporting that statement, he has provided a condition report and valuation of that vehicle (see paragraph 12(d) above), which gives it a market value of LKR1,800,000 (approximately AUD14,500). There is also evidence before the Tribunal that the applicant has cash at bank in Sri Lanka – see paragraph 12(c) above. He gave oral evidence that his bank balance stood, as at hearing, at the equivalent of AUD17,000. The applicant also gave oral evidence that his father owns a tea plantation, which will come to the applicant in due course. There is no documentary evidence before the Tribunal supporting that statement. However, the evidence before the Tribunal generally shows that the applicant and his wife both come from relatively wealthy families, and the Tribunal accepts the applicant’s statement on this point. The applicant also gave evidence that his father-in-law is a businessman and owns several properties and cars – see the documents noted at paragraphs 12(g) to (j) above – and that he wishes the applicant to assist him managing his properties and businesses on his return to Sri Lanka.
The applicant has given no direct evidence of any employment history in Sri Lanka as such, but he qualified as an accountant in Sri Lanka and has given evidence that he worked as an assistant accountant for Pangulf for 3 years, 2 years and 5 months of which time was spent in the United Arab Emirates. The Tribunal infers that the balance of that 3 years was spent working in Sri Lanka. Although the applicant does not proposed to work as an accountant in Sri Lanka, the Tribunal considers that his Sri Lankan degree and his work experience as an accountant will increase his employability in that country.
For these reasons, the Tribunal finds that the applicant has strong personal, community, and economic connections with Sri Lanka, and that they provide him and his wife with a positive incentive to return there at the end of the applicant’s studies.
The applicant was asked why he chose to study in Australia as opposed to Sri Lanka. He answered that he was already living in Australia at the time, and realised that he wanted to enter a hands-on occupation rather than doing desk work as he had in the past. He investigated the options for training in such work in Australia, the comparable options for training in Sri Lanka, and the relative esteem in which Australian and Sri Lankan trade qualifications were held. He concluded that Australian qualifications would give him a far better chance of finding work of the kind he wanted in Sri Lanka. The Tribunal finds this a reasonable motive for choosing to study in Australia.
The applicant gave evidence at hearing that he has no military service commitments to fulfil when he returns to Sri Lanka. He also gave evidence that, although Sri Lanka has experienced a good deal of civil and political unrest in the past, the situation has eased and he has no concerns on the subject now. There is no contradictory evidence before the Tribunal, and the Tribunal accepts the applicant’s evidence on these points.
Taking these considerations together, the Tribunal finds that the applicant’s circumstances in his home country weigh strongly in favour of his claim to be a genuine temporary entrant.
The applicant’s potential circumstances in Australia
The applicant is living in Australia with his wife, the second applicant. They have no children, and no family members living in Australia. The applicant gave evidence at hearing that he has made a few friends in this country, but has not become involved in any community groups or activities in this country other than attending Sri Lankan community events from time to time.
The applicant gave evidence that he owns a motor vehicle in Australia, a 2016 Toyota Corolla, and that he and his wife each have savings in Australian bank accounts. At hearing, their bank balances stood at AUD 29,000 and AUD23,718 respectively. There is documentary evidence of the existence of the applicant’s bank account before the Tribunal that is consistent with his evidence at hearing – see paragraphs 12(ii) and 13(b) above. The applicant’s evidence was that he and his wife own no other assets in Australia. The applicant has been worked in Australia as a cleaning supervisor for Corporate Services Australia, and has made an annual salary of AUD43,000 (before tax).
On the basis of this evidence the Tribunal finds that the applicant has no significant personal or community ties to Australia, and that such ties as he has provide him with no incentive to say in Australia after he finishes his studies. He has some economic ties, but the Tribunal finds that they are not such as to provide the applicant with any strong incentive to stay in Australia once he has finished his studies.
The applicant was asked at hearing what he knew of Australia before he arrived in this country. He stated that he knew very little, apart from what his wife had told him. It should be noted that the second applicant had been studying in Australia prior to the applicant’s arrival here in February 2017, and that she and the applicant married in Sri Lanka on 6 January 2017. By the time he came to apply for his visa, however, he had lived and worked here for a little over a year and may be taken to have had a good knowledge of life in Australia by that point. The applicant gave evidence that all of his research into studying in Australia took place while he was living in Australia, and that his research involved online research aimed at comparing course offerings, and visiting TAFEs and colleges offering courses in which he was interested. He also stated that he spent almost a year performing this research. The Tribunal accepts that evidence and is satisfied that the applicant had a realistic knowledge of life in Australia and the courses of study he wished to pursue before he applied for his visa.
There is no evidence before the Tribunal that the applicant has entered into a relationship of concern, in the sense of a relationship contrived for the purpose of obtaining a favourable immigration outcome. Nor is there any evidence before the Tribunal suggesting that the applicant is using the student visa system to maintain residence in Australia or to circumvent the intentions of the Australian migration programme in any other way.
The Tribunal finds that these factors weigh in favour of the applicant’s claim to be a genuine temporary entrant.
The value of the applicant’s courses to his future
The applicant stated in evidence that he aims to seek employment in the tiling trade when he returns to Sri Lanka. He ultimately wishes to establish his own business, and may seek to do this by buying into a franchise. He stated that he did an internship at a business in Sri Lanka known as Lankatiles (see paragraph 12(o) above), which trades as a franchisor in such an area, and as a result he has some contacts who can help him towards such an opportunity. The applicant’s current courses are obviously relevant to that plan, as are his previous qualifications.

The applicant already has a Bachelor’s degree, and so has regressed in the level of his studies in undertaking his current courses. However, the applicant’s current enrolments also represent a change of career path. The applicant’s evidence, which was in essence that he did not want to work for other people as an accountant but instead wanted to work in a hands-on role in the building trades, explains that change of career path. The Tribunal accepts that evidence, and consequently finds that in this case the applicant’s regression in the level of his studies does not indicate that he is undertaking those studies for the ulterior purpose of remaining in Australia.
The applicant has given evidence, both oral and documentary (see paragraph (cc) above), that the construction industry is very active in Sri Lanka at present and lacks sufficient skilled trade labour. He has stated that locally trained tradespeople are earning around AUD20,000 per annum in the construction industry in Sri Lanka at present. His basis for that statement is job advertisements he has looked at. He also stated that he believes he can earn considerably more with Australian qualifications, and that he will earn even more as the owner of his own business. The Tribunal notes that this is considerably less in absolute terms than the applicant could earn in as an employee in Australia, but does not consider that this in itself casts doubt on the applicant’s evidence, particularly as the applicant’s evidence reveals opportunities for advancement in Sri Lanka that he would not have in Australia.
The Tribunal finds that the applicant’s studies have a real value for his future in his home country, and that this weighs in favour of his claim to be a genuine temporary entrant.
The applicant’s immigration history
The applicant’s evidence at hearing was that apart from Australia, he has also travelled to and lived in the United Arab Emirates (specifically, Dubai). There is no evidence before the Tribunal suggesting that he has ever been refused a visa to enter the United Arab Emirates, or has had a visa cancelled either by that country or Australia. There is no evidence before the Tribunal suggesting that the applicant has breached conditions placed on any visa he has held.
The applicant has resided in Australia for a little over 3 years at the date of this decision. For the first year and three months (approximately) of that time he was a dependant on his wife’s visa. The evidence before the Tribunal shows that he has studied continuously since 2 May 2018. The Tribunal does not consider that either the length of the applicant’s stay in Australia to date or the amount of time he has spent studying in itself indicates an intention to maintain residence in Australia. Nor does the circumstance that the applicant was previously resident in Australia as a dependant on his wife’s visa, and has now applied for his own visa. It is necessary, however, to consider these matters in the context of the applicant’s record of studies.
That record, as revealed by the applicant’s PRISMS record and his evidence at hearing, is as follows:
a.2 May 2018 – 1 March 2020: applicant was enrolled in a Certificate III in Painting and Decorating. His CoE for this course was cancelled on 22 March 2019.
b.22 March 2019 to 1 May 2020: applicant has been studying for a Certificate III in Wall and Floor Tiling.
The cancellation mentioned in paragraph 33(a) above was put to the applicant pursuant to s.359AA of the Act. The applicant explained that due to registration issues his college, PCBT, had to terminate the Certificate III in Painting and Decorating, and offered course participants enrolment in the Certificate III in Wall and Floor Tiling instead. The applicant has provided documentary evidence (see paragraph 12(q) above) confirming this. The Tribunal does not find that the cancellation in question casts any doubt on the applicant’s bona fides as a student.
The applicant has recently informed the Tribunal that he is considering enrolling in Diploma of Leadership and Management at PCBT that would run from 8 June 2020 to 7 June 2021. He has also provided the Tribunal with a copy of an offer of employment as a Team Leader from a Sri Lankan company known as Achira Builders (Pvt) Ltd (see paragraphs 12(gg) and (hh) above). That offer makes special reference to the Leadership and Management qualification the applicant is considering pursuing. In view of that fact, and given that on the evidence before the Tribunal the applicant has assiduously attended to his studies, the Tribunal does not find that the possibility of the applicant seeking to undertake further studies in Australia indicates an intention to maintain residence in this country, or an intention to stay in this country after that course is finished.
The Tribunal finds that the applicant’s immigration history supports his claim to be a genuine temporary entrant.
Conclusion
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
In making his visa application the applicant acknowledged that conditions would be placed on his visa and undertook, at least implicitly, to abide by them. As noted above, there is no evidence that the applicant has breached any condition placed on any visa he has held previously.
On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).
No other relevant matter arises for consideration on the evidence before the Tribunal.
Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
The second applicant’s visa application was refused on the basis that she did not meet the requirements of cl.500.311 of Schedule 2 of the Regulations, because the applicant had not met the requirements of cl.500.212. Given the above findings, the appropriate course is to remit the visa applications of both of the applicants to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500212 of Schedule 2 to the Regulations.
David Thompson
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.