Basainti (Migration)

Case •

[2023] AATA 520

•

5 February 2023

Basainti (Migration) [2023] AATA 520 (5 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jagtar Singh Basainti
Mrs Balwinder Kaur

REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)

CASE NUMBER:  2119940

HOME AFFAIRS REFERENCE(S):          BCC2019/5093395

MEMBER:Damian Creedon

DATE:5 February 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 05 February 2023 at 10:12am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No.69 – reasonable changes to career or study pathways – lack of a firm business plan – value of current or proposed course of study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

CASES
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 November 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicants applied for the visas on 11 October 2019. 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.

  3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

CONSIDERATION OF CLAIMS AND EVIDENCE

  1. 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 satisfies cl.500.212(a).

  2. 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?

  1. 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 (Direction No.69). 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.

  2. 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.

  3. In Kumar v Minister for Immigration and Border Protection[1] the Full Court of the Federal Court held that the Direction requires that, in reaching the state of satisfaction required by cl 500.212(a), the decision maker should turn his or her attention to each factor during the decision-making process and consider whether and how that factor should be brought to bear in reaching that decision.[2]  The Court went on to note that:

    [The Direction] does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case.  Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons.[3]

    [1] [2020] FCAFC 16 (24 February 2020).

    [2] Kumar, Para [82].

    [3] Kumar, Para [96].

Overview of evidence

  1. The applicant is a 37-year-old Indian national who first arrived in Australia on 30 March 2008 as the holder of a Student (TU572) visa.

  2. The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to this application.  The Tribunal has also read and had regard to the applicant’s previous applications before the Tribunal.[4]

    [4] Tribunal Case Numbers 1418777 and 1934568.

  3. In support of his current application the applicant provided an undated 7-page written statement to the Tribunal addressing the “genuine temporary entrant” criterion (GTE Statement).  The GTE Statement may be summarised as follows:

    a.The applicant states that prior to arriving onshore he competed his Senior Secondary Examination from the Board of School Education in Haryana.

    b.In respect of his education in Australia the applicant states that he is residing here to attain “world class qualification (sic)”; he continues (uncorrected):

    In Australia, I have completed English for Vocational Education, Diploma of Business, Certificate IV in Business, Advanced Diploma of Business, Certificate III in Automotive Mechanical Technology, Diploma of Management, Advanced Diploma of Marketing, Diploma of Hospitality Management, Certificate III in Commercial Cookery, Advanced Diploma of Hospitality Management, Certificate IV in Commercial Cookery, Graduate Certificate in Management.  Moreover, I have worked as a Cook/Restaurant Manager in “Bluebag Fresh Catering Melbourne” to gain experience in my field.

    c.The applicant states that, while working, he had the realisation that he was unable to lead teams well and had trouble strategizing and influencing team members to perform their roles “efficiently”; he states:

    This would cause serious issues once I went back to my home country and opened my own restaurant.  Hence, I decided to search for academic courses that could help acquire the skills I need to make sure I can manage and run a restaurant well.

    d.The applicant states that he is currently enrolled in a Graduate Diploma of Strategic Leadership which he intends following with a Graduate Diploma of Management (Learning) at Lennox Institute.[5]

    e.The applicant states that he made a comparison of “some” colleges and found Lennox College to be his study preference.[6]  The applicant states:

    The teaching methods employed by my education provider are far more advanced than in my home country, India.

    f.Under the heading “Career goals”, the applicant states that after the completion of his course he will return to his home country to open his own business.  He states that the restaurant industry in India is “booming”, citing statistics from The Times of India and the India Brand Equity Foundation; the applicant states:

    My intentions are to successfully start my own find dining restaurant back home.  Intercontinental cooking has become more popular these days because the hospitality industry is booming.  Since Indian restaurants with proficient chefs and exceptional fine dining experience are in high demand; I can get an edge on other restaurants in my vicinity as I will be able to meet the requirements of my patrons by providing great service.  In this way I will be able to pursue my ambitions while simultaneously staying close to my family.

    g.The applicant states that he will use his skills and experience to train new staff, run the business and manage the assets and his skills from culinary courses to work as a head chef.  He states that he intends to offer takeaway food and to make his restaurant available on relevant “apps”.

    h.Under the heading “Home ties” the applicant states that his “main incentive” to return to his home country are his family.  He states:

    My immediate family in India consists of my parents, brother, and sister, and I would like to stay close to them.  My wife is staying with me in Australia to support my studies.  I have a great emotional bonding with my family, country, community, people, and culture which I never want to lose.

    i.The applicant states that his parents have supported him emotionally and financially in his decisions; and that he wishes to support them as they age; he states:

    I have strong ties back home including my parents and all the movable and immovable assets that belong to me.

    [5] On pages two and three of the GTE Statement, under the heading “Information regarding the courses” the applicant recites course information for these courses, referenced to the Lennox College website;

    [6] On pages three and four of the GTE Statement, under the heading “Information regarding the education provider”, the applicant recites information from the Lennox College website concerning the college’s

  4. According to the evidence submitted by the applicant, since arriving onshore he has successfully completed the following courses:

Course Name

Date Commenced

Date Completed
  • English for Vocational Education (EVE)

04/2008

06/2008
  • Certificate III in Hospitality (Commercial Cookery)

01/2009

10/2010
  • Diploma of Hospitality Management

01/2009

10/2010
  • Certificate IV in Business

11/2010

06/2011
  • Diploma of Business

07/2011

01/2012
  • Certificate III in Automotive Mechanical Technology

03/2012

07/2013
  • Diploma of Management

08/2013

02/2014
  • Advanced Diploma of Business

03/2014

09/2014
  • Advanced Diploma of Marketing

11/2014

11/2015
  • Certificate IV in Commercial Cookery

11/2016

03/2017
  • Advanced Diploma of Hospitality Management

05/2017

10/2017
  • Graduate Certificate in Management

11/2019

11/2020

  1. The applicant’s evidence is that he is currently enrolled in a Graduate Diploma of Strategic Leadership which he commenced on 25 April 2022 and is scheduled to complete on 23 April 2023.[7]  The applicant also holds a future enrolment in a Graduate Diploma of Management (Learning) that is scheduled to start on 26 June 2023 and end on 27 October 2024.[8]

    [7] See: Overseas Student Confirmation-of-Enrolment (CoE) No CE193667.

    [8] See: Overseas Student Confirmation-of-Enrolment (CoE) No DD9E6611.

  2. The applicant appeared before the Tribunal on 2 February 2023 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  Where relevant, the applicant’s evidence to the Tribunal is referred to in its analysis below.

  3. The applicant’s oral evidence to the Tribunal may be summarised as follows:

    a.The applicant completed his high schooling in India but did not undertake further studies after leaving school.  He stated that he did not work in India prior to coming to Australia.

    b.The applicant confirmed the accuracy of his written evidence to the Tribunal in respect of his completed courses in Australia, as outlined at paragraph [12] above, being courses within the Vocational Education and Training (VET) sector.

    c.The Tribunal then discussed with the applicant his motive for undertaking study in Australia and his history as a student here.  The applicant stated to the effect that he chose to undertake higher education in Australia to study cookery; when pressed as to his career objective when he first came onshore, he stated:

    I would have gone towards hotel management.

    d.The applicant stated, however, that he changed his mind and wished to pursue business studies with the object of opening his own restaurant.  When pressed by the Tribunal as to when he changed his mind, the applicant stated that he held this goal “quietly, from the beginning”.

    e.The applicant stated that his family had a “machinery business” in India but that this industry held no interest for him; rather, he wanted to open a restaurant as he liked cooking.

    f.When asked by the Tribunal why he did not return to India in October 2010, having by then completed a Certificate III in Hospitality and a Diploma of Hospitality Management, the applicant stated that he was “too young” at that point, and wanted to “gain more knowledge and do more courses”.

    g.When pressed as to the type of knowledge he then wished to acquire, the applicant stated that he wished to learn “how to start a business, how to market” and “what needs to be done”.  The applicant confirmed in oral evidence that this is what motivated him to study a Certificate IV in Business and a Diploma of Business through to January 2012.  When pressed as to why he did not then return to India in January 2012 having by then acquired further hospitality and business qualifications, the applicant stated:

    [At] that time my mind was not developed I was not ready; I was in no rush; [it is] not easy to start own business; I wanted to prove myself and prove what I want to do.

    h.When further pressed on this answer, the applicant stated that, although he was “ready as a businessman”, his skills as a chef were “not quite there”.  He stated that he took up cookery and “applied for temporary residency” so as to prepare himself to open a restaurant.

    i.When pressed as to why, then, if he required improved skills as a chef, he then pursued a Certificate III in Automotive Technology commencing in March 2012, the applicant stated:

    As I told you, my family belongs to this trade because I wanted to learn more about spare parts.

    j.When further pressed, the applicant stated that he had to try this course as his family was pushing him to go into that trade; he stated, however, that it was “not his field”.

    k.The applicant confirmed that after completing this course he then studied for and completed Diplomas of Management, Business and Marketing; when pressed by the Tribunal as to why he chose these courses the applicant stated that he wanted to learn how to “grow, market, advertise and manage” his future business.

    l.When asked by the Tribunal why he did not then return to India in November 2015 at the conclusion of these three courses, and after having prepared himself to work as a cook, the applicant stated:

    I was ready as a businessman but not ready as a chef until [I obtained a] skills assessment.

    m.The applicant stated that he therefore enrolled in a Certificate IV in Commercial Cookery and an Advanced Diploma of Hospitality Management, courses which extended his stay onshore to October 2017.

    n.When asked by the Tribunal why he did not return to India at the conclusion of these two additional courses, the applicant stated that he returned to India for “around three months” in 2018 to investigate the prospect of returning there to open a business.  At the Tribunal’s prompting the applicant confirmed that the visit he was referring to was during the period 1 December 2018 to 19 January 2019.[9]  

    o.When pressed by the Tribunal as to the outcome of his investigations, the applicant stated that he “looked for a place” to open a business and stated that several industries were moving states in India for “tax purposes” and he stated to the effect that, as his hometown was on the border of these states, he was in a favourable position.

    p.When asked by the Tribunal why he did not stay in India to continue pursuing his plans there, the applicant stated that he needed to “complete his training” and that in 2018 he obtained “temporary residency”.  The applicant stated that he also achieved a positive “skills assessment” as a chef.  When asked by the Tribunal what the positive “skills assessment” achieved for him, the applicant stated that he is now a “qualified chef”.  When asked by the Tribunal whether, with such a positive “skills assessment” as a qualified chef, he was therefore then able to commence work in India, the applicant stated:

    Yes, I am a properly qualified chef now, ready to start up my own business.

    q.The applicant stated that he achieved the positive “skills assessment” by October 2019, with the certified result coming through to him in January 2020.

    r.When asked by the Tribunal why, if he had achieved everything he needed by October 2019, including a positive “skills assessment”, he then enrolled in a Graduate Certificate in Management in November 2019.  The applicant stated that he did so because of the COVID pandemic.  When pressed by the Tribunal to clarify his reason, the applicant reiterated that he enrolled in the Graduate Certificate in Management in November 2019 because of the travel restrictions associated with the COVID-19 pandemic, and because he was conscious that he must be enrolled in a course of study to remain in Australia.

    s.When asked by the Tribunal why he enrolled in a Graduate Diploma of Strategic Leadership and a Graduate Diploma of Management (Learning), the applicant stated that although he had skills in cooking and business, he stated that he now required skills as a leader before he can return to India to start his business.

    [9] See the applicant’s Movement Record.

  4. The applicant was assisted in relation to the review by his registered migration agent.

  5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Analysis and findings

The applicant’s previous applications to the Tribunal

  1. The Tribunal has read and had regard to the material in the applicant’s previous applications to the Tribunals, including his oral evidence.

  2. The Tribunal as presently constituted is not bound by findings of fact of the Tribunal(s) as previously constituted.[10]

    [10] SZFYW v MIAC [2008] FCA 1259 at [9]; SZHKA v MIAC (2008) 172 FCR 1 at [18].

  3. The Tribunal notes that Direction No.69 requires decision makers to allow for reasonable changes to career or study pathways.[11]

    [11] See s.12a of Part 2 to Direction No.69.

  4. Making allowance for the requirements of s.12a of Part 2 to Direction No.69, the Tribunal as presently constituted prefers the applicant’s most recent evidence as being the most accurate statement of his past and present circumstances.

  5. Accordingly, the Tribunal specifically disregards any apparent inconsistencies in the applicant’s evidence to the Tribunal as between his previous cases or as between those cases and his present application. 

Applicant’s oral evidence to the Tribunal

  1. The applicant’s evidence to the Tribunal was given with the assistance of an interpreter and the Tribunal makes allowance for the challenges of interpretation.  The applicant’s oral evidence to the Tribunal was that he wrote the GTE Statement himself.

  1. The Tribunal accepts that the applicant came onshore in 2008 to study cookery and, at that time, saw a future for himself in hotel management. The Tribunal also accepts that at the time of, or shortly after, his arrival onshore the applicant changed his mind and decided to also pursue business studies with the object of opening his own restaurant. The Tribunal considers this a reasonable change to the applicant’s career or study pathway: s.12a of Part 2 to Direction No.69.

  2. On reviewing the applicant’s evidence as to his study history in Australia, the Tribunal had concerns regarding five occasions when the applicant could have made the decision to return to his home country to pursue his career goal of opening his own restaurant; specifically:

    a.at the conclusion of his Certificate III in Hospitality (Commercial Cookery) and Diploma of Hospitality Management in October 2010;

    b.at the conclusion of his Certificate IV in Business and Diploma of Business (in addition to the above courses) in January 2012;

    c.at the conclusion of his Certificate III in Automotive Mechanical Technology, Diploma of Management, Advanced Diploma of Business, and Advanced Diploma of Marketing (in addition to the above courses) in November 2015;

    d.at the conclusion of his Certificate IV in Commercial Cookery, Diploma of Management, Advanced Diploma of Business, and Advanced Diploma of Hospitality Management (in addition to the above courses) October 2017; and/or

    e.at the conclusion of his “skills assessment” in October 2019.

October 2010

  1. When pressed by the Tribunal as to his decision to remain onshore in October 2010, the applicant stated that he was “too young” and wanted to “gain more knowledge and do more courses”.  The Tribunal notes that the applicant was 25 years of age at that time and had, by then, been onshore for over two-and-a-half years. 

  2. He had also, by that time, acquired qualifications in commercial cookery and in hospitality management, fulfilling to some extent his stated study goals for his future career.  The applicant’s explanation for continuing his study was that he wished to learn “how to start a business, how to market” and “what needs to be done”.  Although vague, the Tribunal is prepared to extend to the applicant the benefit of the doubt and to accept this explanation, noting the relatively modest AQF level of his studies at this time.[12]

January 2012

[12] “AQF” is an acronym for “Australian Qualifications Framework”; see generally: < type="1">

  • By January 2012 the applicant had completed a further two VET-level courses, a Certificate IV in Business and a Diploma of Business.  When pressed as to why he did not return to India at this time, having fulfilled his previously stated study goals with respect to acquiring business qualifications, the applicant’s explanation was that his “mind was not developed”, he “was not ready”, “was in no rush, that it is “not easy” to start a business.  He stated that, although he was “ready as a businessman”, his skills as a chef were “not quite there”. 

  • Noting that the applicant had by this time completed only one course specifically in the field of commercial cookery, a Certificate III, the Tribunal is again prepared to extend to the applicant the benefit of the doubt and to accept this explanation despite its vague expression.

    • Studies in Automotive Technology

    1. The Tribunal raised with the applicant its concern, given his previous explanations and desire to pursue commercial cookery as a career, at his studying in the apparently unrelated field of Automotive Technology between March 2012 and July 2013. 

    2. The applicant’s explanation was that his family owned a business in this industry and that they were pushing him to study in this field.  The Tribunal is cognisant of s.12a of Part 2 to Direction 69, and despite the absence of corroborating evidence as to his family’s wishes, extends the benefit of the doubt to the applicant and finds this explanation to be reasonable in the circumstances.

    November 2015

    1. By November 2015 the applicant had completed the Certificate III in Automotive Mechanical Technology and, despite previously specifically claiming that he required further “skills as a chef”, three further VET-level courses in Management, Business and Marketing respectively.

    2. The applicant’s explanation for undertaking these courses was that he had wanted to learn how to “grow, market, advertise and manage” his future business.  He stated that by this time he was “ready as a businessman” but not “ready as a chef” until he obtained a “skills assessment”. 

    3. The Tribunal notes that a “skills assessment” is a requirement for certain temporary visas to Australia.[13]  The applicant provided no explanation as to why he required a “skills assessment” to open and run a restaurant in India.  Nonetheless, and allowing for the possibility of misinterpretation or misunderstanding, the Tribunal is prepared to extend to the applicant the benefit of the doubt and accept that he believed at this time that he required further qualifications in commercial cookery and hospitality to enhance his career prospects in India.  The Tribunal also notes the applicant’s evidence in his GTE Statement that he has worked as “a Cook/Restaurant Manager” in “Bluebag Fresh Catering Melbourne” to gain experience in his field.

    October 2017

    [13] See generally: < type="1">

  • By October 2017 the applicant had completed two further VET-level courses, a Certificate IV in Commercial Cookery and an Advanced Diploma of Hospitality Management (augmenting his previously acquired Certificate III in Hospitality (Commercial Cookery) (completed in June 2008) and Diploma of Hospitality Management (completed in October 2010)).

  • The Tribunal notes that the applicant was granted a Temporary Graduate (Subclass 485) visa on 13 April 2018 which ran until 13 October 2019.

  • During this time the applicant stated that he returned to India for a relative brief period (between 1 December 2018 and 19 January 2019) and that he “looked for a place” to open his business.  The applicant stated that, rather than stay in India and commence his business, he returned to Australia to “complete his training”.  He states that he had received a positive “skills assessment” by October 2019.  Despite the absence of corroborating evidence, the Tribunal is prepared to accept the applicant’s evidence on these issues.

    • October 2019

    1. Notwithstanding this, however, the Tribunal finds the applicant’s evidence as to his decision-making in October 2019 to be unpersuasive.  By this time the applicant had achieved, by his own account, all that he had set out to achieve through his education in Australia: he had stated that he was “ready as a businessman” as early as 2012, he had completed further studies in commercial cookery to the level of Certificate IV and in hospitality to the level of Advanced Diploma, and when asked by the Tribunal whether, with a positive “skills assessment” having been achieved by October 2019, he was therefore then able to commence work in India, the applicant stated that he was.  Further, his evidence was that his investigations in India in late-2018 / early-19 had revealed opportunities for him there.

    2. Further, the applicant’s answer to the Tribunal’s question why, in these circumstances, he then enrolled in a Graduate Certificate in Management in November 2019 was because of the COVID-19 pandemic.  When pressed on this evidence, the applicant maintained his answer that he enrolled in the Graduate Certificate in Management in November 2019 because of the travel restrictions associated with the COVID-19 pandemic, adding that he was conscious that he must be enrolled in a course of study to remain in Australia.  This answer raises a significant concern for the Tribunal.

    3. The Tribunal notes that the first human cases of COVID-19 were identified in Wuhan, People's Republic of China, in December 2019.[14]

      [14] Page, J; Hinshaw, D; McKay, B. "In Hunt for Covid-19 Origin, Patient Zero Points to Second Wuhan Market." The Wall Street Journal, 26 February 2021. <>

      The Tribunal further notes that the World Health Organization declared the COVID-19 outbreak a Public Health Emergency of International Concern on 30 January 2020, and a pandemic on 11 March 2020.[15]

      [15]  "Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019-nCoV)". World Health Organization (WHO). 30 January 2020. <>

      The Tribunal further notes that:

      The first case of novel coronavirus in Australia (nCoV-19) was reported in Victoria on 25 January 2020, with an additional three cases confirmed in New South Wales later that day. The name for the disease caused by nCoV-19, coronavirus disease (COVID-19), was announced by the World Health Organization (WHO) on 11 February 2020. The first person to die from COVID-19 in Australia was a man from Western Australia who died in Sir Charles Gairdner Hospital on 1 March 2020.[16]

      (Citations omitted.)

      [16] Parliament of Australia, COVID-19: a chronology of state and territory government announcements (up until 30 June 2020), <>

      The Tribunal finds, therefore, that the earliest any notice of (what would become) COVID-19 could not in fact have been known by anyone in Australia before December 2019 and that (what would become) COVID-19 did not enter public consciousness until in or around January 2020.

    4. The Tribunal therefore finds the applicant’s answer as to why he enrolled in a Graduate Certificate in Management in November 2019 to be inconsistent with the facts. 

    5. The Tribunal is also concerned with the applicant’s evidence as to why he is continuing his studies in Australia now and proposes further study in the future.  Despite the applicant claiming that his hometown was favourably situated for opening his intended business, and that he was qualified to commence work in India, the applicant provided no persuasive evidence at the hearing as to why he is pursuing studies in Australia, stating simply to the effect that, although he has sufficient skills in cooking and business for his purposes, he now required skills “as a leader”.  The Tribunal also notes the applicant’s evidence in his GTE Statement he had (or has) trouble “strategizing and influencing team members to perform their roles ‘efficiently’”.  In all of the circumstances, the Tribunal considers the totality of this evidence to be vague, generic and unpersuasive. 

    6. The applicant’s evidence in his GTE Statement as to his career goals is also superficial, lacking any sense of a firm business plan and making no reference to the investigations the applicant claims in oral evidence that he made in India in late-2018 / early-2019.

    7. In respect of the balance of the GTE Statement the Tribunal considers the applicant’s information regarding his current and proposed courses, and his education provider, to be merely edited recitations from the education provider’s course outlines and institutional profile.  The statements made by the applicant do not show a level of knowledge of the course beyond that of a casual reader of the institution’s webpages, which the applicant has cited and which the Tribunal has reviewed.

    8. The applicant states in his GTE Statement that his “main incentive” to return to his country is his family.  He states that his parents, brother, and sister are resident there and he would like to stay close to them.  He also states that he has “movable and immovable assets” in India but offers no particulars thereof.  The Tribunal notes that in his earlier response to the Tribunal’s request for information pursuant to s.359(2) of the Act[17] the applicant described assets under the description “Land, House & Savings” to the value of $100,000 in India.  The Tribunal also notes the affidavit of financial support sworn by the applicant’s father in Kalka, India, on 27 January 2023, and the fixed deposits in his name with UCO Bank, India the most recent being dated 17 January 2023.  The Tribunal accepts that these personal and economic ties, and those of the second-named applicant to her home country, provide some incentive for the applicants to return to India and the Tribunal places some weight on this factor in the applicant’s favour.

      [17] In Case Number 1934568.

    9. There is no evidence before the Tribunal of any civil unrest or military service commitments in the applicant’s home country that would act as a clear incentive for the applicant to remain in Australia.  There is also no evidence that the applicant, or a relative of the applicant, has not complied with previous visas or previously held visas that were refused, cancelled, or considered for cancellation.  The applicant’s immigration history does not raise concerns for the Tribunal. 

    10. The Tribunal has had the benefit of speaking to the applicant which has enabled it to obtain more information regarding his circumstances and genuineness in the presentation of his evidence.  The Tribunal has assessed all of the evidence before it, including that the applicant is currently enrolled, has previously completed the courses claimed in Australia, has said he will return home on completion of his studies, has strong family ties to his home country and all the other matters he has raised.

    11. Overall, the Tribunal finds that the applicant has failed to demonstrate how his current or proposed course of study will enable him to obtain employment or improve his employment prospects in India, or that his proposed study is relevant to his future employment or career plans either in India or a third country.  By his own evidence the applicant achieved his study goals in Australia not later than October 2019 when he completed his “skills assessment”.  His evidence to the Tribunal, that he was at that time in a position to return to India to commence his work there, was unequivocal.  Of particular concern to the Tribunal is the finding that the applicant’s stated reason for enrolling in a course of study in November 2019, the COVID-19 pandemic, does not align with the facts as to the emergence of COVID-19.

    12. Given the amount of time the applicant has now spent onshore on Student and other temporary visas, the Tribunal is concerned that a further Student visa may be being used primarily for maintaining ongoing residence.

    13. The weight the Tribunal places on the absence of civil unrest or military service commitments in the applicant’s home country, and his personal and economic ties there, together with his compliance with previous visas and positive immigration history, is insufficient to dispel the Tribunal’s conclusions in this respect. 

    14. Overall, the Tribunal is persuaded that the student visa programme is being used by the applicant to circumvent the intentions of the migration programme.  For the reasons outlined above the Tribunal does not accept that the applicant is undertaking his current study or future study for the reasons he claims.

    15. 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).

    16. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

    17. 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

    1. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Damian Creedon
    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

    1. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    2. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    3. 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

    1. 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.

    2. 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

    1. In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

      a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

      b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

      c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

      d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

      e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    1. 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

    1. An applicant’s immigration history refers both to their visa and travel history.

    2. 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

    1. 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

    1. 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.



     "WHO Director-General's opening remarks at the media briefing on COVID-19—11 March 2020". World Health Organization. 11 March 2020. <

    Key Legal Topics

    Areas of Law

    • Immigration

    • Administrative Law

    Legal Concepts

    • Judicial Review

    • Procedural Fairness

    • Statutory Construction

    • Remedies

    • Jurisdiction

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    SZFYW v MIAC [2008] FCA 1259
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    AEK15 v Minister for Immigration and Border Protection [2016] FCAFC 131