BEEJAHDUR (MIGRATION)

BEEJAHDUR (MIGRATION) [2019] AATA 4019 (19 SEPTEMBER 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kunal Rai Beejahdur
CASE NUMBER:  1722587
HOME AFFAIRS REFERENCE(S):           BCC2017/2732502
MEMBER:Genevieve Cleary
DATE:19 September 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 19 September 2019 at 11:34am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – value of course – reasons for undertaking selected course – plans for the future – lack of any real direction provided – limited travel home – length of stay in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
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 20 September 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 1 August 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia.
The applicant appeared before the Tribunal on 6 May 2019 to give evidence and present arguments.
The applicant was assisted in relation to the review by their registered migration agent.
Prior to the hearing the Tribunal received from the applicant:
·     The decision of the delegate of the department;
·     Photographs of the applicant working;
·     A bank statement;
·     References from the priest of the temple the applicant attends;
·     A letter from Jan’s Flooring confirming he has worked for them;
·     A letter from the Ministry for Youth and Arts, Mauritius, dated 8 March 2012;
·     Progress results;
·     Confirmations of Enrolment;
·     Submissions from the applicant’s representative;
·     A copy of his passport.
The Tribunal has also had regard to the Department file.
At the completion of the hearing the applicant was not asked to provide anything further to the Tribunal. However, on 26 July 2019 the applicant sent to the Tribunal a Confirmation of Enrolment showing that the applicant is now enrolled in a Diploma of Construction Management at Everthought College of Construction, commencing 14 October 2019, to be completed on 8 October 2021. He has paid $1000 upfront for the course, although ultimately he will have to pay $19,000 to complete the course.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant intends genuinely to stay temporarily in Australia for study.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant’s education and his future
The applicant completed his secondary education in December 2011 in Mauritius. During high school he was selected to represent Mauritius in a youth leadership forum. When the applicant left school he volunteered with the Minister for Youth and Sport in Mauritius, commencing in June 2012 delivering a ‘drug sensitisation’ program. He also learnt life, survival and leadership skills, and learnt about fitness, the environment and building tree walks and ropes. He was again selected for a youth leadership program while at the Ministry. He was also doing carpentry work on the weekends with a crate maker, which was arranged through his uncle. He did this from 2010 to 2014.
His volunteer work continued until he came to Australia in 2014.
During one of the leadership courses where the topic was sustainable tourism for Mauritius, he developed what he called “his dream”. The course involved a competition about how to create employment for young people through tourism. He developed an idea that he could turn a health track, which he explained was a walking track, into a tourist attraction. His idea was that as there was only 1 zoo in Mauritius, a second one should be developed. The health trail would become an animal park. As a result, he eventually applied to study a course in animal studies in Australia.
When he came to Australia, the applicant was enrolled in an English course, a Certificate III and IV in Animal Studies and a Certificate IV in Veterinary Nursing at Bentley Polytechnic West. At the hearing in the Tribunal, the applicant said that he wanted to discover more about Australia. He came here on a student visa, he said, because he wanted to explore Australia, which he would do during study holidays, and because he was doing a course which related to animals, he would be moving around areas to visit facilities.
These courses were to run from July 2015 to June 2017. He did not complete the Certificate III course. He said that he is hesitant to ask for help, and he felt that he did not get sufficient support from the management when there were things in the course that he did not understand. He felt the institution failed him. They told him that he should go back to Mauritius, however he felt he could not do so without a certificate. He said that Polytechnic West suggested he do a fitness course if he did not want to go home.
While he felt that he could not achieve his dream through the animal studies courses, he agreed fitness would be a good idea because that also related to his dream, although it also meant he could then show his family that he had achieved something. He felt that he probably would have done carpentry if he had had more time to think about it, however he was aware that he had to be enrolled, and thought he would take up Polytechnic West’s suggestion.
He enrolled in a fitness course at South Metro Tafe, running from July 2016 to June 2017 and costing about $12,000. He worked at a gym at the same time. He completed the fitness course in 2017, gaining a certificate III and IV.
Every holiday he travelled to the south of Western Australia, although he agreed that he did not travel anywhere else despite his coming to ‘explore’ Australia. His parents paid for his trips.
He told the Tribunal that even though he had finished the fitness course and gained a qualification, he still wanted to experience and explore more.
He was asked by the Tribunal why he did not go home at that point. He said that it was because he was young and wanted to explore more of Australia. In addition, his grandfather had passed away in his second year here; they were very attached, his grandfather taking a significant role in caring for him when he was young. Knowing he is emotional, his parents told him to stay here and travel around. He obeyed them. He felt that he would gain wisdom by doing so.
He then felt that because he had experience in carpentry from his work in Mauritius, he should enrol in a carpentry course. He looked for a college where he would get support and he saw that Everthought had a large international cohort, so he felt that he would obtain support there. He also saw that they helped with work placements.
He started the Certificate III in Carpentry in August 2017 and he said that that will finish in September 2019, however it is noted that the Confirmation of Enrolment provided by him says the course finished in August 2019.
The reasons for the applicant wanting to complete a carpentry course
The applicant has given conflicting reasons as to why he wanted to complete a carpentry course, and the inconsistencies in his evidence have made it difficult for the Tribunal to discern exactly what his intentions are. This weighs against the Tribunal being able to be satisfied that he is a genuine student.
Both at the outset in the Tribunal hearing and in the applicant’s papers filed in the Tribunal and with the Department in his application for this visa in 2017, the applicant said that he believes that he would be attractive to employers if he was to gain an Australian qualification in carpentry, and that he would be looking to work in a large construction project, many of which are underway already. In the papers filed in the Tribunal and on application of the visa, he has not mentioned his dream of developing the animal/health trail, or developing his own hotels and other services to that trail. He has mentioned in his papers filed in the Tribunal that he would be looking to gain experience in the large construction projects so that he could ultimately run his own business, although he does not say what that business is. The focus in the papers is on him achieving his carpentry qualification, and applying that trade when he returns. Not only has he not mentioned his dream of the trail in those papers, but neither has he suggested that he has any desire to gain any more qualifications after the carpentry certificate, particularly not in relation to construction management.
The applicant told the Tribunal at the hearing that Mauritius is an island relying on tourism. Tenders that are published by the hotel industry and government tourism agencies are plentiful. He thought at the time of finishing his fitness course that if he studied carpentry here he would have an advantage over others in Mauritius, which would make him more competitive. He knew that a qualification from Australia was highly valued in the building and construction industry; most of the construction companies, he said, outsource carpentry and are looking for individuals with high levels of skills and experience. He felt that large builds would be looking for an international qualification.
The Tribunal recognised that by the time of the hearing, the applicant had commenced and almost finished the carpentry course for which he had originally sought the 2017 visa. Therefore, at the outset of the hearing the Tribunal asked the applicant what he intended to do once the carpentry course was finished. The applicant appeared a little unsure about what he would do after he finished the carpentry course. At first he said that he would go home and apply for a carpentry job. When asked whether he wanted to take a next step, such as obtain a Diploma in Construction, and possibly apply for a registration in building, he said it would depend on the ‘consular’ and migration agents. He then said that he will probably study construction part time “back home.”
Later in the hearing he told the Tribunal that his plans were “definitely that if he has his Certificate III” that he would then go back home and apply for a government job. He said has passed all his subjects so far, so there was no reason to think he would be delayed. The applicant reiterated at the completion of the hearing that he would go home after his studies, although it was unclear by that time whether he meant the carpentry course, or some other intended course.
Toward the completion of the hearing the applicant also told the Tribunal that carpentry would definitely assist him in achieving his dream of creating an animal trail. He said that he would go to investors and suggest to them that he could do the carpentry work. He suggested that as Mauritius has so many natural resources, such as water and wood, he could assist in building hotels that would be attached to the trail.
In relation to the animal/health trail, the applicant had no more plans than this, and the Tribunal is not satisfied that the applicant has properly, or really at all, thought about this as a viable and valid course for his future. The connection between the animal trail and carpentry was tenuous. It also differed from what he told the Tribunal at first, and in his papers, which was that he would return to Mauritius after completing his carpentry course and would be looking for a job as a carpenter through tenders put out by companies and governments building hotels and other tourist buildings. If the trail was his project, then he would not need to look for a job, and it would not concern him that he needed to be competitive in the job market.
The closest the applicant has come to referring to such a venture in the papers filed at the Tribunal by him is a reference to his goal of gaining experience as a carpenter to “run my own business.” It is not clear what form the business will take, and the applicant has offered no other details in the papers. It is also noted that in the papers he said that he is “open to any opportunities that I ge[t] in Mauritius or anywhere in the world.”
The applicant’s evidence on his goals for the future is inconsistent. That makes it difficult for the Tribunal to discern what his goals are which, in turn, makes It difficult to assess the value of the applicant’s courses to his future. During his volunteering work he was exposed to making tree walks on trails and ropes, and has had experience with working with his hands. The Tribunal accepts that the applicant has previously had exposure to carpentry and exposure to that type of work in nature. It also accepts that he may well have the idea that to create an animal and fitness trail would be desirable for tourism in Mauritius. However, given the finding that the connection between the carpentry course and the nature trail is tenuous, the Tribunal is not satisfied that the carpentry course has any value to the applicant’s prospects of setting up such a trail, or assisting in building hotels in his ‘dream’ of developing that trail.
In addition, the applicant now intends to study construction management. The applicant has not provided any evidence on how this adds value to his future, however the Tribunal accepts that a course in management will have some benefit to running a business relating to construction, but it is not satisfied that it will assist in developing such a specialised project as developing the animal/health trail.
The applicant has told the Tribunal that he had experience in running a business. His grandfather runs a retail and wholesale liquor shop, and when the applicant was 16, his grandfather needed to leave for 2 weeks for medical checks, and he ran the business for him while he was away, even though he also agreed that he was not legally himself allowed to sell alcohol at 16. He has also said that other family members have businesses, but he has not said that he has assisted them in running their businesses or given any indication of his plans as to how he would run his business in comparison, or at all. The Tribunal is not satisfied that that experience will hold him in any stead to manage a carpentry or construction business, or develop his trail. The Tribunal therefore places little weight on his plans to “run a business” whatever that business will be.
There is no doubt that a carpentry course would assist in gaining a qualification to assist in making himself competitive in the market, if that is the applicant’s goal, and that it is reasonable to study in another country to gain such a qualification. However, given the contradictory evidence given by the applicant between whether he intends to return to look for such a carpentry job, or to develop and manage the construction of a nature trail and associated hotels and facilities, the Tribunal cannot be satisfied as to what he does actually intend to do when he returns. As a result, the Tribunal cannot be certain as to the true value of a carpentry course or a construction management course to the applicant’s future.
In addition to what I have expressed above, the applicant also told the Tribunal that he came to Australia to explore, and did not leave once he finished his fitness course because he wanted to explore further. Despite his desire to so explore, he has only travelled to the south of Western Australia. Even allowing for use of language, the applicant clearly told the Tribunal that one of his main purposes of coming to Australia was to explore Australia. This may have meant that he intended to experience Australia while studying. If that is the case, then that has been achieved, and the applicant does not need to stay longer to do so. If he did want the Tribunal to accept that he came to and remained in Australia for the dominant purpose of exploring Australia, then that proposition poses a difficulty because:
a.That is not what a genuine student predominantly comes to Australia for, and
b.In any event, given he has not effectively explored Australia, the Tribunal finds that proposition conflicting with what he has done, which is to remain in the one place and study in 3 distinct and separate areas, and work.
Either way, the Tribunal is left with inconsistencies in either what the applicant has told it, or what the applicant has actually done, such that it is not satisfied that it has any real appreciation of what the applicant wishes to do, and what his goal was when he originally came to Australia. Even if he did first come to Australia as a genuine student, all of the inconsistencies expressed above add weight to a finding that he is now using the student visa system to maintain ongoing residence.

The applicant says that the carpentry qualification is not available in Mauritius, and that may be so. The Tribunal gives him some weight in his favour in relation to him being able to remain and complete his carpentry course, if that is the case. However it does not explain why he has decided to now stay and study a 2 year Diploma course in construction management. The Tribunal accepts that an Australian qualification will give him a competitive edge, and that that course may have some benefit to his future if he wants to work or run a business in the construction industry, and this factor can be given some weight in his favour, however other than the fact that he wants to run ‘a business’ at some unknown time in the future, or otherwise build an animal and health trail with hotels made of the natural resources of Mauritius, the Tribunal has no more specific information than that, and, like the carpentry course, cannot see that the Diploma course has any real benefit to the applicant’s future. The Tribunal cannot give that factor, in relation to the Diploma course, any weight in his favour.
On the contrary, given the lack of any real direction provided by the applicant as to his future, despite the considerable sum of money he has paid for the courses he has now completed, or almost completed, and wants to remain to complete, no matter what course, the Tribunal is satisfied that the applicant is using the student visa system to maintain ongoing residence in Australia, and this factor weighs heavily against him.
The applicant’s circumstances in Australia and Mauritius
The applicant has a cousin in Australia but he has not been in touch with her for a number of years. The applicant is not in a relationship here and the Tribunal is satisfied that the applicant has not entered into a relationship of concern for a successful Student visa outcome, and places some weight in his favour on this factor.
The applicant was living with his parents before he came to Australia. He has a brother and extended family there. His family are supporting him while he is here in Australia. He lives in a house he shares with a person who is a student, and the other is a citizen of Australia.
It appears that the applicant was a well-regarded youth in Mauritius, and has also enjoyed community ties in Western Australia having joined the volunteer group for the Mallard Street Temple in Cannington.
The applicant’s family own land in Mauritius. He says the property is worth approximately AUD $830,000, although there is no proof that the property will come to him, to that value, at any stage. In any event, the Tribunal has taken this into account when weighing up whether he has incentive to return to Mauritius. The applicant has also said that his family are educated and well off. The applicant anticipates that as a carpenter he has the potential to earn AUD $40-$50,000 per year, which will provide him with a comfortable life. Given the standard of living in Mauritius is lower than in Australia, the Tribunal accepts that that level of income would be relatively similar to what the applicant may achieve in Australia once he is qualified and trained, and this may also be a reason why he does not have a significant incentive not to return to Mauritius, or a significant incentive to stay in Australia.
The Tribunal accepts that the applicant has some ties to Mauritius, and few ties to Australia, such that he has some incentive to return to his home country, and the Tribunal gives that some weight in his favour, however, it does not appear that he has significant incentive to return to Mauritius, and therefore I only give that factor a little weight in his favour.
The applicant has not returned home to visit his family. His mother and father were here for 2 months in 2018, and his father has also visited him. This suggests that he does not have a need or desire to return to Mauritius to be with his family, although, as has been expressed above, the Tribunal accepts that having family remaining in your home country may provide some incentive to return home to live eventually. The Tribunal accepts that the applicant’s bridging visa does not allow him to travel. Nevertheless, the lack of returning home to visit suggests the ties with his family are not strong, and that they are in any event able to visit him here, and that is also a reason why the Tribunal only gives those ties minimal weight in his favour.
The applicant is not subject to national service and there is no political or civil unrest or economic reasons that would be cause for the applicant not to return to his home country, or provide an incentive for him not to return, and the Tribunal gives these factors some weight in his favour.
The Tribunal accepts that he has some knowledge of living, studying and working in Australia and of Australian culture, however this is a factor that the Tribunal can give no weight to, as it suggests both that he has a requisite knowledge of studying here, such that it suggests that he is a genuine student, but also that he has a knowledge of working and living in Australia that suggests he is here for more than just study, such that he may be using the student visa regime for ongoing residence.
The applicant has worked while being in Australia: at a pet store from March 2015 to December 2015, then the gym as a student placement and then as an employee from August 2016 to June 2017 and then as a trade’s assistant from October 2017 to February 2019.
The work he has at Jan’s carpentry is ongoing. He said he found it very difficult to find a job otherwise, because his visa did not allow for a full time job, and he found that people were reluctant to give him work. However, the history of work given by the applicant shows that he has had some ongoing employment while he has been here. He said that he enjoys the work at Jan’s and felt that there was no reason why they would not keep him on. This suggests that he has built up some ties through his work as a carpenter in the Australian community, however they are not significant and the Tribunal does not place any weight on those ties.
The applicant’s immigration history
The applicant has not had a visa refused or cancelled elsewhere, and there is no evidence before the Tribunal to suggest that he has not complied with visa conditions either in Australia or elsewhere. He had not been to Australia prior to coming here in 2014. There are no other outstanding visa applications yet to be finally determined. There is no evidence that any of his family have an immigration or visa history of concern, or that he has not complied with any visa or travel conditions on holiday trips prior to him coming to Australia. The Tribunal gives the applicant some weight in his favour for those factors.
The applicant arrived in Australia on 5 July 2014. At the time of the hearing in the Tribunal, the applicant had been in Australia, on a temporary visa, for 5 years. Given he came to Australia to study a 2 year course after completing an English course, that is a significant length of time to be here temporarily on the student visa regime. The Tribunal accepts that he struggled with his first substantive course, and that would not have been a reason, at that point, to be satisfied that he was not a genuine student. The Tribunal accepts that many people do not complete courses they attempt, and that people change course in their studies, particularly when they are young, and also accepts that there is added pressure on a young person when they are away from home. While that initial struggle and change does not weigh against him for the struggle itself, what does weigh against him is the fact that he also completed a fitness course, it appears from his evidence, to stay in the country, and therefore the change to carpentry, and now construction management, cannot be explained adequately by a young person not knowing what they wanted to do when they first started tertiary study. In fact, the applicant has said that he did know what he wanted to do – he wanted to develop his nature and animal trail, and that is why he came here to study the animal courses, even though in his 2017 visa application and in the papers provided to the Tribunal that was not mentioned.
The applicant has gone on to remain in Australia and study in 2 other diverse areas, and is now enrolled in a third area, although it is accepted that the construction management may bare some relation to the carpentry course. Even if the Tribunal accepted, which it does not, that the fitness course was enrolled in in haste, which explains the change in type of course, or that it had something to do with his desire to develop a fitness and animal trail, that does not explain the third change, being carpentry, and now building management.
He is now enrolled in a course which will mean that, if he is granted his student visa, and completes the course on time, he will have been in Australia for 7 years to complete a Diploma level qualification. Even allowing for a difficult start and a change in direction, and accepting that this is a progression in his studies in terms of the levels of study, this is a lengthy amount of time, and along with the applicant’s expression that he came to Australia to “explore” the country, and the inability of the Tribunal to be satisfied as to what the applicant’s goals for the future really are, and therefore what the value of his courses to his future are, the Tribunal is satisfied that this shows that he has used, and is using, the student visa regime to maintain ongoing residence in Australia. This weighs significantly against him being granted a Student visa.
Having regard to the applicant’s visa and travel history and education history, weighed with the other factors discussed, the Tribunal is satisfied that the applicant is using the Student visa to maintain ongoing residence.
Any other relevant matters, and is the applicant a minor?
There are no other relevant factors, either in favour or against the applicant. The applicant is not a minor, and therefore the intentions of any other person are not relevant.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Genevieve Cleary
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2019] AATA 4019

19 SEPTEMBER 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Remedies