Bhandari (Migration)

Bhandari (Migration) [2022] AATA 4470 (7 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Sadiksha Bhandari
Mr Prakash Reule
REPRESENTATIVE:  Mr Hem Raj Bhatta (MARN: 1466471)
CASE NUMBER:  2118766
HOME AFFAIRS REFERENCE(S):          BCC2020/1915725
MEMBER:Gabrielle Cullen
DATE:7 November 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 07 November 2022 at 4:12pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – gaps in studies – plans to start a business – unsatisfactory course progress – lengthy stay in Australia – significant family ties in home country – benefit of courses to future career – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.212, 500.311
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 November 2021 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 16 July 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The applicant arrived in Australia on 20 November 2016 on a subclass 500 student visa valid to 19 July 2020. The second named applicant arrived in Australia on 26 June 2017 on a dependent student visa. They applied for the visas to which this decision relates on 16 July 2020.
With her application the applicant submitted Confirmation of Enrolments (COEs) to study a Certificate IV in Commercial Cookery from 6 July 2020 to 2 Janaury 2022, followed by a Diploma of Hospitality Management from 10 Janaury 2022 to 3 July 2022. The evidence indicates she did not successfully complete the Certificate IV in Commercial Cookery with enrolment being cancelled for unsatisfactory course progress on 23 April 2021, and enrolment in the Diploma course was cancelled at the same time[1]. She then enrolled in a Certificate IV in Commercial Cookery from 3 Janaury 2022 to 2 July 2023, which the applicant is currently studying and achieving course progress, followed by a Diploma and Advanced Diploma of Hospitality Management to 5 Janaury 2025.
[1] As raised via s.359AA at hearing.
Evidence as raised with the applicant via s.359AA indicates the following previous enrolment and study record.
·Enrolled in the Certificate IV in Business from 14 November 2016 to 13 November 2017 which was successfully completed.
·Enrolled in the Diploma of Business studied from 2 Janaury 2018 to 31 December 2018 which was, as advised by the applicant at hearing, not successfully completed.
·Enrolled in the Advanced Diploma of Business from 1 May 2019 to 28 October 2020 with enrolment cancelled for unsatisfactory course progress on 20 January 2020.
·Not enrolled in any course of study from 20 January 2020 to 6 July 2020.
·Not enrolled in any course of study from 23 April 2021 to 3 Janaury 2022.
With her application for the visa, she provided evidence of her parents and siblings as well as her spouse’s family living in Nepal. She also provided evidence of health insurance to 19 September 2022, evidence relevant to the financial and English language capacity criteria, and evidence she completed the Certificate IV in Business in 2017. With her application she provided a letter from the education provider confirming she is enrolled in a Certificate IV in Commercia Cookery from 6 July 2020 to 2 Janaury 2022 and Diploma of Hospitality Management from 10 Janaury 2022 to 3 July 2022.
In a statement addressing the genuine temporary entrant criteria she outlines that she is studying as she has been working in a restaurant for 3 years and sometimes helps to work in the kitchen and now wants to open her own restaurant on return to Nepal. She claims she wants to gain practical knowledge in cooking which will help her establish her restaurant and that is why she has applied to study a Certificate IV in Commercial Cookery and Diploma of Hospitality Management. She notes she finished her secondary school in Nepal then came to Australia to study a Certificate IV and Diploma of Business. She notes that her decision to choose the cookery courses has been highly influenced by her employment working in a restaurant and sometimes as the Chef in the kitchen. She notes she is currently working as a waitress and in customer service at a restaurant and as such has the practical knowledge to run a small-scale restaurant. She claims she has decided to study in the cookery area due to her profound interest in the field of culinary arts and as she is a big food lover who wants to eat different types of food every time and who is really interested in cooking. She refers to the business courses completed and to her aim of achieving her own business and combining the knowledge to open her own restaurant or hotel in Nepal upon completion of her study. She repeats on a number of occasions that she wishes to open her own restaurant on return. She also outlines why she wants to study in Australia and refers to the quality of the education and what she will study in the Certificate Iv in Commercial Cookery and Diploma of Hospitality Management.
As to why she is studying these courses she notes
The reason I am choosing this course is to gain knowledge and skills so that I can continue further to pursue my dream of becoming a qualified chef and a manager to run overall all restaurant or Hotel when I return to Nepal. My aim is to carry this knowledge back to my home country and spread this knowledge by working in the field. I believe Nepal is still in very early stages of practicing global culinary arts and style of cooking. Still, the market is limited to the local foods and cuisines. Because of this, the knowledge and skills that I can contribute can be very helpful in the years to come. My aim is to open my own restaurant where I can serve the guests with various assortments of cooking styles and teach future generations.
She refers and provides links to the top restaurants in Nepal.
She notes the following
I would like to be the next person to own a restaurant with a unique style and cuisines that will certainly be amongst the top restaurant in Nepal. I will open my own business with an attractive strategy on hospitality and cookery field, and I intend to improve the quality of food service and hospitality being provided to the people in Government and private organizations where common people have become the victim of unhygienic foods and inhospitable manner.
Adding further, I would like to utilize the knowledge and skills that I get from Australia and implement in Nepal for starting my own business. Furthermore, I would like to change the perception of Nepalese people and establish a restaurant/ hotel that will focus more on hygiene and focus on healthy and degustation menus that will benefit the health and wellbeing of the people. Also, I want to be a successful woman and change the perception of the Nepalese society that, women also can run the food and hospitality industry successfully. Further, I will start my own business with an alluring procedure on hospitality and cookery field, and I expect to improve the nature foodservice and hospitality being provided to the people in Government and private associations where everyday citizens have become the survivor of unhygienic food sources and unfriendly way of cooking. I am certain that
The second named applicant also provided a statement indicating his support for his wife’s student visa application. He notes that:
I am very supportive in her decision to study Commercial Cookery and Hospitality course as she has a desire to be successful chef and hospitality personnel in the future and wants to lead by an example in the Nepalese community where it is mostly dominated by men. She has always been a sincere and genuine student while studying in Australia as she has already completed her Certificate IV and Diploma of Business course with competent score. I further believe, she will be giving more time in her current study as it has been the area of her interest and passion. While she is studying hard, my support for her in regular domestic works can be very productive. Also, we are the happiest persons when we are together which can be very spiritual for both of us to stay together. As I am the only one person whom she can rely on Australia as all other family members are back in Nepal I hope to support her and motivate her in pursuing her dream career in the hospitality industry.
The delegate decided to refuse to grant the visas on 19 November 2021. The delegate decided to refuse to grant the visas because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis of her study gaps and as the Advance Diploma of Business was cancelled for unsatisfactory course progress, as well as the length of time she has spent in Australia having arrived on 20 November 2016.
On 9 December 2021 the applicants lodged an appeal to the Tribunal. The applicant was requested to provide the Department decision but her representative advised she did not wish to do so.
Prior to the hearing the applicant provided the following additional evidence
·Letter dated 17 August 2022 from Dr Yuliya Richard , PSsyD and Health Psychology, Blue Horizon Counselling and Meditation to confirm that the applicant attended the practice on 5 February 2022 and 10 March 2022.
·Confirmation of Course enrolment letter dated 19 September 2022 from TKL College stating that the applicant is enrolled in a Certificate IV in Commercial Cookery leading to a Diploma of Hospitality Management and Advanced Diploma of Hospitality Management. The letter notes her course commenced on 3 January 2022 and the expected completion date is 5 January 2025.
·Statement of Attainment issued on 19 September 2022 from TKL College stating the applicant has completed 10 accredited units.
In a further genuine temporary entrant statement, the applicant’s additional claims are as follows:
·She has been working in the restaurant for 4 years and sometimes she assists the chef which has helped her to become interested in cooking in a restaurant and her future.
·Cooking is her passion and hospitality is her gift and she wants to build a career in that field.
·She refers to the great franchises such as the Hyatt in Nepal and that if she completes her study she can earn up to 80,000 rupees per month working in such hotels.
·Her future plan is as described below.
After the completion of my study in Australia I want to go back to my country after around 2-3 month. If I just complete my certification IV only then I will just get the job of waiter and earn around 10-15000rs. But if I get the chance to complete my study then I will be earning around 80000rs as a chef in the 5 star restaurant. I am planning to apply for the chef job in my home country because it will be better for my future. As we all know that if I earn 1000AUD per week in Australia I will not able to live my life freely because with that money I cant do anything good for my future but if I go back to my country and work as a chef in the big restaurant like hotel Annapurna, Soaltee hotel etc where I can earn money around 80000rs per month which will be enough for me and for my family to make our future secure.
The applicant appeared before the Tribunal by telephone on 13 October 2022 to give evidence and present arguments. The second named applicant did not attend the hearing. Their representative attended the hearing and the applicant was assisted with an interpreter in the Nepali and English languages. The applicant indicated she was able for the hearing to proceed in English but would utilise the interpreter when she did not understand. The Tribunal urged the applicant to utilise the interpreter at any time when she did not understand or when she could better answer the questions in Nepali.
The Tribunal noted that the issue before it is whether she meets the genuine temporary entrant criteria as per cl.500.212. It outlined these requirements and Direction 69.
The applicant said she had only successfully completed the Certificate IV in Business and completed 10 units towards the Certificate IV in Commercial Cookery. She said she did not successfully complete the Diploma of Business.
As to the value of the courses to her future she is currently enrolled in, she said that having worked for 4 years in a restaurant, as cook and then chef, once she completes her courses she will return to Nepal to work as a Chef in a 5-star restaurant and earn about 80,000 rupees per month.
She confirmed she had been working at the Flavour of India since 2017 and it is a restaurant that seats 20 people. She said since January this year she had been working as a chef and before that sometimes assisted the chef as a cook.
The Tribunal questioned why she is working in an Indian restaurant in Australia if she wants to return to Nepal to work in a 5-star hotel as it may expect that Indian cuisine is a speciality to her home area and not necessarily in Australia. She said that is why she wants to study to give her experience in other cuisines.
The Tribunal asked her further questions as to the value of her current study to her future; she said it has been her long-time plan to work as a Chef in a good hotel or restaurant. She said if she only completes the Certificate IV in Commercial Cookery she can only return to work as a waiter and could not realise her plan to work as a Chef in a 5-star restaurant or hotel.
She said she is supported by many people and her parents-in-law may help her and her husband to open a hotel or restaurant in the long term.
The Tribunal raised as of concern that if her main aim is to study to work as a chef in a 5-star establishment why in her statement submitted to the Department did she only referred to studying to open her own restaurant or hotel on return and that her aim is to open a business restaurant. It referred to her statement and raised as of concern the inconsistency.
She said she first needs to gain experience working as a chef in a 5-star restaurant or hotel and then with the help of her in-laws she will open a restaurant. The Tribunal questioned the change in evidence and asked why she had not said this to the Department as her plan. She said she is seeking to gain knowledge to gather the skills to open her own restaurant business.
The Tribunal outlined her study record from PRISMS as outlined above and raised as of concern her lack of course completion, that she has only completed a Certificate IV in Business since her arrival to study in November 2016, that twice her enrolment has been cancelled for unsatisfactory course progress and that twice she had not been enrolled for a period of time. It noted she has previously breached conditions of her visa by not being enrolled in a course of study. It questioned whether she is a genuine student and genuine temporary entrant.
She said she came to Australia when she was 18, and it was a new environment, everything had always been provided by her parents and she was very alone. The Tribunal quested this as in the first year she passed her course.
She said she was suffering stress, anxiety anger and mental issues as her husband arrived in Australia 6 months after her and she discovered he was cheating on her. She said he came in July 2017 and in January 2018 she discovered he was cheating on her. She said it caused much stress, anxiety and insomnia. She said she began seeing her GP about 2 years ago to help her with this stress and the Tribunal asked if she had evidence of this. She was given until 20 October 2022 to provide further evidence. She said she had also been to two counselling sessions this year and had been to her GP twice and her GP provided her with sleeping tablets as she was not sleeping well.
The Tribunal raised as of concern that she had only seen a counsellor in 2022 and her GP twice, when it is her evidence she not been studying or successfully completing courses since 2018 because of mental issues. It also raised as of concern that she had been able to work 20 hours per week during this period and questions why if she could work, she could not study. She said she was thinking negatively, could not sleep and could not study.
She said her husband works at Woolworths.
The Tribunal noted she had been in Australia since November 2016, a period of 6 years and wants to study until Janaury 2025, a period of 8 years and questioned whether she is a temporary entrant due to her length of time in Australia and proposed length of time, especially as she has noted departed.
She said she knows she has breached the conditions but she was young and had issues but now she is 24 and more mature and wants to complete her study.
She said all her and her husband’s family are in Nepal.
She said there are no political or civil issues or military commitments which would act as a disincentive to return.
She said her family has property but she does not personally own any, nor does her husband.
As to previously breaching conditions of her visa, she said she feels bad as she was a good student in Nepal but when she came to Australia she faced the difficulties as outlined above. She said that her parents have supported her to stay and study.
Her representative raised that there are two main issues raised by the Tribunal, the first her change in plan and he submitted that with experience and exposure this happens and before she was working at a low level and after she started studying, she realised she needed to upgrade herself so the plan changed. With regard to her study gap and lack of course progress; he said an event happened in her personal life which was very difficult for her to deal with; she married when she was very young, it was a love match and she was in a new country and on that basis did not study. He said two years ago she wanted them both to go back but then she changed her mind and realised the benefits of study in Australia. He said the Tribunal needs to consider her age, personal circumstances, current course progress and submitted that she deserves a second chance
He noted she has fast tracked her study and the Tribunal noted that there is no evidence of this in the documentation submitted and gave the applicant time to provide such evidence.
The applicant was given until 20 October 2022 to provide any further evidence including that from her GP.
Following the hearing the applicant provided the following documents:
·Evidence the applicant has completed 19 units towards the Certificate IV in Commercial Cookery as of 21 October 2022.
·Letter from the applicant’s current education provider indicating she is expected to complete the course on 1 Janaury 2023 and is continuing the fast-track course.
·Letter from the applicant’s lawyer to her medical practitioner, as requested by her, seeking a letter as to the applicant’s medical treatment.
·Her medical practitioner’s consultation notes indicating the following visits.
oVisit on 13 March 2021 complaining of headache and difficulty sleeping, given melatonin and massage.
oVisit 30 December 2021 complaining of a feeling of fear, anxiety, becoming upset and angry with other people, stress, sleep affected and requested to see a psychologist. Referred to Ms Lew.

On 25 October 2022 the Tribunal sent the applicant’s representative the following email
The Tribunal notes you have included in your submission a request to the applicant's medical practitioner for a letter regarding the applicant's medical treatment but have not requested an extension of time to provide this letter.
Please advise whether you request further time to provide this document and if so, how long?
On 28 October 2022 the applicant provided her medical record from 10 March 2021 to 27 October 2022 from Auburn Medica Centre. These notes indicate the following:
·Report of headache and poor sleep on 10 March 2021 – melatonin and massage prescribed.
·Surgery consultation on 7 September 2021 complaining of fatigue, chest pain and headache.
·Surgery consultation 30 December 2021 where applicant complains of feeling anxious, fear, stressed and feeling angry. The applicant requested to see a psychologist and referred.
·Surgery consultation on 1 February 2022 with indigestion and gastritis. Referral given to Auburn Emergency Department suspecting appendicitis.
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 he meets cl 500.212.
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
Having considered the applicant’s claims against all the factors specified in Direction No. 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.
As to the applicant’s circumstances in her home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to Nepal, rather than on completion of her study she will be able to obtain a position earning 80,000 rupees per month. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. It accepts her evidence as to why she chose and chooses to study in Australia and not Nepal, and the benefits of an Australian education on return to Nepal. The Tribunal accepts that she has close family ties in Nepal with all her and her husband’s family living there, that as the only daughter she has responsibility to her family and to take care of the parental property. It accepts her husband‘s family are expecting them to return and take care of his family’s business. The Tribunal therefore accepts she has closer family ties in Nepal than in Australia and these indicate an incentive to return. The Tribunal accepts that these circumstances in Nepal are indicative of a person who is only a temporary entrant who has an incentive to return to Nepal.
The Tribunal also accepts that the applicant is enrolled in a Certificate IV in Commercial Cookery from 3 Janaury 2022 to 2 July 2023, which the applicant is currently studying in an accelerated course and achieving course progress and is then enrolled to study a Diploma and Advanced Diploma of Hospitality Management to 5 Janaury 2025. It accepts she has knowledge of these course and the relevant education provider. It accepts she has completed 19 units towards the Certificate Iv in Commercial Cookery which she is currently enrolled in. It accepts she previously completed a Certificate IV in Business studied from 14 November 2016 to 13 November 2017. It accepts that the successful completion of courses and enrolment in the periods above are indicators of a genuine student but they are two of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.
The above information indicates the applicant has been in Australia since November 2016, when she arrived on a Subclass 500 student visa to study a Certificate IV in Business, as well as a Diploma of Business and Advanced Diploma of Business, a period of approximately 6 years. Her evidence indicates she has not departed Australia and returned to Nepal. The Tribunal views her extended stay in Australia from November 2016, and her desire to remain until January 2025, being a period of almost 9 years in total and 6 and as at the date of this decision, having not returned to Nepal, to be of significant concern as to whether she is a temporary entrant. It views her length of time in Australia without returning as undermining her claim as to her circumstances in Nepal being a motivation to return.
This is particularly so as despite the applicant arriving in Australia approximately 6 years ago, in November 2016, on a Subclass 500 student visa and repeatedly indicating she is in Australia for the purpose of study, including enrolling in further courses and applying for a further student visa she has only successfully completed one vocational course, the Certificate IV in Business, completed in her first year in Australia and 19 units towards her current course the Certificate Iv in Commercial Cookery in 2022. Further, as raised with her via s 359AA, she has had the following poor study history and periods of non-enrolment as follows:
·That the applicant was not enrolled in a course of study from 23 April 2021 to 3 Janaury 2022.
·Despite applying for the visa to which this decision relates to study a Certificate IV in Commercial Cookery from 6 July 2020 to 2 Janaury 2022, followed by a Diploma of Hospitality Management from 10 Janaury 2022 to 3 July 2022, the evidence indicates she did not successfully complete the Certificate IV in Commercial Cookery with enrolment being cancelled for unsatisfactory course progress on 23 April 2021, and enrolment in the Diploma course cancelled at the same time
·She was not enrolled in a course of study from 20 January 2020 to 6 July 2020
·Enrolment in the Advanced Diploma of Business from 1 May 2019 to 28 October 2020 was cancelled for unsatisfactory course progress on 20 January 2020
·She was enrolled in a Diploma of Business studied from 2 Janaury 2018 to 31 December 2018 but did not successfully complete it. While in a submission to the department she advised she had completed this course, at hearing she said she had not.
The Tribunal has considered her reasons as to his slow rate of course progress and lack of enrolment, and why she wishes to again study the Certificate IV in Commercial Cookery, as well as the Diploma and Advanced Diploma of Hospitality, including its value to her future career aim. While there may be good reason for it, for the reasons set out below, the Tribunal finds that she is currently enrolled and studying these courses to prolong her stay in Australia rather than for its value to her future or for any value to her future or for any of the reasons claimed.
As to the reason for his slow course progress and lack of enrolment as outlined above, the applicant referred to mental stress, anxiety and insomnia caused as a result of her husband cheating on her, which she discovered in early 2018, her youth and the difficulty adjusting and the mental stress these events caused her.
While the Tribunal accepts the cheating of her husband, as a love match would have been difficult and, it does not accept that the mental stress caused by it led to her being unable to study when she has been able to work in the restaurant as submitted throughout this period. Her evidence is she has been working at the Flavour of India for about 20 hours per week since 2017.The Tribunal is of the view if she was able to work and was in Australia to study as a genuine student as she claims since November 2016, she would have done so, as a priority.
The Tribunal is also of the view that if it is her claim she was in Australia to study that she would have sought medical help sooner from her medical practitioner for mental health than 2021 she was so mentally affected for the reasons she claims that she could not study from 2018. The medical notes note she complained of mental health difficulties in December 2021. While the evidence indicates she accessed counselling services in 2022 the Tribunal is of the view she would have sought help sooner, rather than spending from 2018 to January 2022 not being enrolled and not achieving course progress. Over such a significant period it also does not accept there were cultural issues as to accessing help and is of the view that if she was in Australia to study and could not she would have accessed help despite these issues.
The Tribunal also view her inconsistent evidence as to the value of these courses to her future and particularly why she is studying these courses to be of concern and undermine her claim she is studying for the reasons she claims. In her statement to the Department the applicant claimed that she is studying the cookery and hospitality courses to open a restaurant or hotel on return. She refers to previously studying a business course and to studying to open her restaurant business on return. However, at the Tribunal hearing she indicated that she is studying so she can work as a chef in a 5-star restaurant or hotel on return and this has been her long-term plan. She indicated this repeatedly and while she did refer to her parents-in-law funding a restaurant in the future after her work as a chef this was only after indicated at hearing after the inconsistency was raised. When the Tribunal raised its concern she referred to needing to first gain experience working as a Chef in a 5 star restaurant or hotel and then with the help of her in-laws she will open a restaurant. The Tribunal questioned the change in evidence and asked why she had not said this to the Department as her plan; she said she is seeking to gain knowledge to gather the skills to open her own restaurant business. Her representative said the change in plan is due to her experience and exposure and before she was working at a low level and once she started studying she realised she needed to upgrade herself so the plan changed. The Tribunal is of the view that if it had been her long-term plan has been to work as a first chef in a 5-star restaurant and that is why she is studying the courses, she would have provided this evidence to the Department. The inconsistency adds to the finding she is not a genuine student studying for any of the reasons she claims, but rather that she is using the student visa process to maintain residence, and she is not a genuine applicant for entry and stay as a student.
As to the applicant’s immigration history, the Tribunal has already discussed above that the applicant did not comply with a condition of her previous visa by being enrolled ad her length of time in Australia.
In making this finding the Tribunal accepts that completion of the courses will assist her to obtain employment or improve her employment prospects, however for the reasons above it does not accept she has enrolled in these courses for this reason or for any of the reasons he claims.
In making this finding the Tribunal has considered her knowledge of living in Australia but makes no adverse or positive finding on this basis in considering whether she is a genuine temporary entrant.
In making its decision, the Tribunal has considered all the evidence before it, including: that she is currently enrolled in a course; she has strong family ties in Nepal; her evidence she will return home after the completion of his course; that she is the only daughter and both she and her husband need to assist their parents managing their assets; that she is working in Australia in a restaurant in the same area as her future career aim; that her parents and husband support her education and the medical evidence provided. However, for the reasons outlined above, the Tribunal does not accept she is undertaking the current study for the reasons she claims, but rather is using it as a pathway to maintain residence in Australia. The Tribunal is therefore not satisfied that she is a genuine applicant for entry and stay as a student and is of the view that the student visa program is only being used to maintain ongoing residence.
On the basis of the above, the Tribunal is therefore 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.
As the applicant has not satisfied the primary criteria for the visa it follows that the second named applicant does not satisfy the secondary criteria contained in cl 500.311 of Schedule 2 to the Regulations.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Gabrielle Cullen
Member

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

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the 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;
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
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.

[2022] AATA 4470

7 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction