Candra (Migration)
[2022] AATA 2996
•13 July 2022
Candra (Migration) [2022] AATA 2996 (13 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Decky CANDRA
CASE NUMBER: 2114199
HOME AFFAIRS REFERENCE(S): BCC2020/422284
MEMBER:Mireya Hyland
DATE:13 July 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.211 of Schedule 2 to the Regulations; and
·cl.500.212 of Schedule 2 to the Regulations.
Statement made on 13 July 2022 at 12:41pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–genuine applicant for entry and stay as a student– applicant intends genuinely to stay in Australia temporarily – value of the course to Mr Candra’s future is significant – applicant is enrolled in a course of study – decision under review remittedLEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958, ss 65, 359, 499Migration Regulations 1994, r 1.03, Schedule 2, cls 500.111, 500.211, 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 Home Affairs on 29 September 2021 to refuse to grant the applicant, Decky Candra, a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
Mr Candra applied for the visa on 13 February 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). Mr Candra 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 criteria for the grant of a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa on the basis that Mr Candra does not satisfy the requirements in cl.500.212 of the Regulations because she was not satisfied that Mr Candra intends genuinely to stay temporarily in Australia. The delegate did not consider any requirements other than those contained in cl.500.212(a). Mr Candra lodged an application for review of the decision with the Tribunal on 14 October 2021 and the matter was constituted to the Tribunal on 10 March 2022. The delegate’s decision was provided to the Tribunal by Mr Candra with his review application.
On 11 July 2022, Mr Candra appeared before the Tribunal via Microsoft Teams video conference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian (Bahasa) and English languages. Where relevant the evidence given at the hearing is set out below. It is not necessarily set out in the order in which it was given.
Mr Candra was born in Pontianak in the Kalimantan Barat province of Indonesia on 10 September 1998 and is 23 years of age. He has never been married or in a de facto relationship and has no children. His mother, brother and one sister all live in Indonesia. Mr Candra also has a sister, Siskalia (born 22 December 1993), currently living in Australia as the holder of a Temporary Skills Shortage (Class GK) Subclass 482 visa. Before coming to Australia Mr Candra completed Secondary School (the equivalent of Year 12 in Australia) and is not currently enrolled in any study outside Australia. From 1 September 2017 until December 2019 when he came to Australia he worked as an area sales supervisor for a manufacturing company in Pontianak.
Mr Candra first entered Australia on 7 December 2019 as the holder of a Visitor (Class FA) Subclass 600 visa. He initially told the Tribunal that he came to Australia as a tourist, but eventually admitted that he came to Australia to study. That visa ceased on 7 March 2020. Mr Candra enrolled in a package course comprised of a Certificate IV in Marketing and Communication from 3 February 2020 to 31 January 2021 (CoE B4AB1C85), Diploma of Marketing and Communications from 1 February 2021 to 30 January 2022 (CoE B4AB3E24), and Advanced Diploma of Marketing and Communication from 7 February 2022 to 5 February 2023 (CoE B4AB5198). He has successfully completed his Certificate IV and Diploma. He claims to be on track to complete his Advanced Diploma on 5 February 2023. Mr Candra is not approved for any further study and told the Tribunal that he does not intend to do any further study in Australia after he finishes his Advanced Diploma.
According to a Genuine Temporary Entrant statement (the GTS) accompanying the student visa application form (the application) lodged with the Department of Home Affairs (DHA) in February 2020, Mr Candra claims he decided to study marketing and communications in Australia because it will help him accomplish his goal of opening his own business back in Indonesia. He states that he believes marketing is a ‘weapon to become a successful entrepreneur … especially in the business world’.
On 15 February 2022, the Tribunal wrote to Mr Candra pursuant to s.359(2) of the Act inviting him to provide additional information in writing about his enrolment (cl.500.211) and whether he is a genuine applicant for entry and stay in Australia as a student (cl.500.212). He was required to respond to the Tribunal’s invitation by 1 March 2022. On 28 February 2022, Mr Candra provided a response to the Tribunal’s s.359(2) letter (the s.359 response) together with certain relevant documents evidencing his study and family businesses.
The issues in this case are whether Mr Candra is enrolled in a course of study as defined in the Regulations and is a genuine applicant for entry and stay as a student. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the visa to be granted, an applicant is required to meet the primary criteria set out in cl.500.2 of the Regulations at the time of decision. These primary criteria include requirements relating to enrolment (cl.500.211) and being a genuine applicant for entry and stay in Australia as a student (cl.500.212). To meet cl.500.212, that the applicant is a genuine student, he or she must intend genuinely to stay in Australia temporarily (cl.500.212(a)) and comply with any conditions (cl.500.212(b)), and the decisionmaker must consider any other relevant matters (cl.500.212(c)).
Is Mr Candra Enrolled in a Course of Study - cl.500.211(a)
Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). Mr Candra does not claim to meet any of the alternative criteria in cl.500.211 of the Regulations.
A ‘course of study’ is defined in cl.500.111 of the Regulations as, among other things, a ‘full-time registered course’. A ‘registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered under Division 3 in Part 2 of the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) to provide the course to overseas students.
The Department of Education, Skills and Employment (DESE) is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and the Provider Registration and International Student Management System (PRISMS). PRISMS is a computer system developed by DESE in association with DHA to receive and store the information about accepted overseas students that is given to the Secretary under the ESOS Act. It provides a secure system for CRICOS registered educational institutions to issue ‘confirmations of enrolment’ (CoEs) as evidence of enrolment in a CRICOS registered full-time course and reports changes in course enrolment, for instance failure to commence study, unsatisfactory progress, ceasing study, changes to the duration of study, etc. The Tribunal is satisfied that a PRISMS search is reliable evidence of the enrolment in a full-time ‘registered course’ (as defined) of the person who is the subject of the search.
The Tribunal made a search of PRISMS on 11 July 2022 to verify whether Mr Candra is enrolled in a full-time registered course. The PRISMS search revealed that since 7 February 2022 Mr Candra has been enrolled in, and is studying, an Advanced Diploma of Marketing and Communications due to be completed on 5 February 2023 (CoE B4AB5198). He does not have approval for any further study in Australia.
Therefore, the Tribunal is satisfied that at the time of this decision, Mr Candra is enrolled in a course of study and accordingly cl.500.211 is met.
Does Mr Candra Intend Genuinely to Stay in Australia Temporarily - cl.500.212(a)
Clause 500.212(a) requires that:
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; …
Mr Candra is not a minor so cl.500.212(a)(iii) is not relevant to this case.
In considering whether an 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. The 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 his/her home country, his/her 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; and
· any other relevant information provided by the applicant, or information otherwise available to the Tribunal, including information that may be either beneficial or unfavourable to the applicant.
The factors specified in the Direction are not to be used as a ‘checklist’ but rather are intended to guide decisionmakers when considering an applicant’s circumstances as a whole and in reaching a decision about whether he or she satisfies the genuine temporary entrant criterion.[1] The factors are all matters for the Tribunal ‘to think about and weigh up’.[2]
[1] Direction No. 69, Part 2 at [1]. See Nguyen v MIBP [2013] FCCA 1864, Singh v MIBP [2018] FCCA 3423.
[2] Singh v MIBP [2018] FCCA 3423 at [17] and [18].
Not all factors set out in Direction No. 69 are relevant to the circumstances of this case.[3]
[3] Bala v MIBP [2019] FCA 600 at [17]-[18] where the Court found that even though certain factors included in Direction No. 69 were not specifically referred to by the Tribunal it did not follow that they were not considered.
Mr Candra’s Circumstances
Direction No. 69 provides that regard should be had to Mr Candra’s circumstances in Indonesia and his potential circumstances in Australia. The Tribunal should also have regard to the value of his courses to Mr Candra’s future. According to the Direction, weight should be placed on any circumstances that indicate that the Student visa is intended primarily to maintain residency in Australia.
Circumstances in Mr Candra’s Home Country
In considering Mr Candra’s circumstances in his home country, whether he has reasonable reasons for not undertaking the study in Indonesia, the extent of his personal ties to his home country, and whether his circumstances serve as a significant incentive to return are all relevant. Any economic circumstances that would present an incentive for Mr Candra not to return to Indonesia, including consideration of those circumstances relative to Indonesia and to Australia, and whether there are military service commitments or political and civil unrest in Indonesia that might motivate him not to return are also identified in Direction No. 69. It is open to the Tribunal to consider Mr Candra’s circumstances as compared to others in Indonesia.
Mr Candra arrived in Australia on a Visitor visa and, therefore, how he came to be studying is Australia is relevant to whether he has a reasonable reason for not undertaking his study in Indonesia. He states in the GTS that he came to Australia to visit his sister, Siskalia, and after a few weeks started asking around for advice about studying in Australia. He told the Tribunal that he did not realise he could study in Australia until after he arrived. The problem with this claim is twofold. First, ostensibly Mr Candra had a life and, more particularly, a job in Indonesia that he had undertaken to go back to, but then suddenly after ‘a few weeks’ in Australia decided he would stay for four years, which from a practical perspective appears implausible. Second, as the Tribunal pointed out to him, Siskalia came to Australia on a Student visa in February 2014 and spent over two years studying before applying for a visa under Australia’s skilled migration program. In other words, he did not first find out he could study in Australia after arriving in 2019. Mr Candra was then honest with the Tribunal and said that, in fact, he had come to Australia on a Visitor visa intending to stay and study.
In the s.359 response, Mr Candra states that the quality of Australian education cannot be compared to Indonesian qualifications. It is well known and popular as a study destination, not just by Indonesians, but by people around the world. Also, Australian English will be a good addition to his business career in Indonesia. Finally, Australian education is more affordable than courses in Singapore or Malaysia and yet provides a better quality. The Tribunal accepts that Mr Candra’s reasons for studying marketing and communication in Australia rather than in Indonesia are reasonable.
Except for Siskalia, who currently lives in Australia, Mr Candra’s extended family all live in Indonesia. He states in the s.359 response and told the Tribunal at the hearing that he is the youngest child in his family and very attached to his mother. He and his mother are particularly close because his father passed away when he was a child, and he would never leave her for any length of time. He claims that he calls and video chats with his family in Indonesia. Sometimes he posts on social media to them about how he is faring in Australia. The Tribunal accepts that Mr Candra’s family in Indonesia is an incentive to return to his home country, but since he is not in a relationship and has no children it does not consider it to be a significant incentive.
In the s.359 response and at the hearing, Mr Candra claims that he has close ties to Indonesia where he has friends that he stays in touch with through social media. He also attends his community church. But otherwise he provided little detail about his ties to Indonesia. The Tribunal accepts that Mr Candra will have some ties to his home country, and they are an incentive to return, however given the lack of detail it does not consider that they are significant incentives for him to return home after completing his study.
There is nothing before the Tribunal to indicate economic circumstances that would be a significant incentive for Mr Candra not to return to Indonesia. In the GTS, Mr Candra states that his brother, Sang Surya (born 9 February 1988), runs a building materials business and his sister, Frintina (born 25 March 1991), runs a bubble tea shop. Mr Candra provided the Tribunal with evidence of these businesses with the s.359 response. He told the Tribunal that his family is financially stable and relatively well-off by Indonesian standards. This is supported by the fact that there have been the funds to support both his and his sister’s education in Australia. Mr Candra also told the Tribunal that Frintina’s business has been sufficiently successful that she will be assisting him with funding his own future business.
The Tribunal notes that under its Constitution all citizens are legally entitled and obliged to defend Indonesia and conscription is provided for by law, but the Indonesian National Armed Forces (TNI) have been able to maintain required strength levels without resorting to a draft and so there is not mandatory military service in Indonesia. Consistent with this, Mr Candra indicated to the Tribunal that he does not have any concerns about any military service commitments that would prevent him from returning home after his study. He also confirmed to the Tribunal that he does not have any concerns about any political or civil unrest in Indonesia. There is no evidence before the Tribunal to suggest that current circumstances exist that would result in Mr Candra choosing to remain in Australia for that reason.
The Tribunal finds that the extent of his ties to Indonesia and his personal circumstances serve as some incentive for Mr Candra to return to his home country. It is unaware of any economic circumstances that would present an incentive for him not to return to Indonesia given the family’s economic circumstances. However, the Tribunal finds that Mr Candra could provide little detail other than his relationship with his mother which it does not consider to be a significant incentive to return home after study.
Potential Circumstances in Australia
When considering Mr Candra’s potential circumstances in Australia, his ties with Australia (both family and community) that might act as an incentive to remain are relevant. Any evidence that the student visa program is being used to circumvent the intentions of Australia’s migration program or being used to maintain ongoing residence, and whether he has entered into a contrived relationship to facilitate a successful outcome should also be considered. Mr Candra’s knowledge of living in Australia, the intended course of study, and his education provider are all identified in Direction No. 69.
There is no evidence that Mr Candra has any particular ties with Australia except his sister, Siskalia, who is onshore as the holder of a temporary skilled visa. He has only been in Australia for a comparatively short period of time, much of it during the Covid-19 pandemic which involved restrictions that would have constrained somewhat his ability to develop close connections to Australia. There is nothing before the Tribunal to indicate that his links to the community would be anything but limited. Mr Candra lives with Siskalia, attends his local church, and engages with a few friends, but otherwise there is nothing about his participation in Australia that would provide a draw for him to stay.
The Tribunal had some concerns that in the application and s.359 response Mr Candra lists Siskalia as being usually resident in Indonesia when she has lived in Australia since early 2014. She first arrived as the holder of a Student (Temporary) (Class TU) Subclass 572 Vocational Education and Training Sector visa granted offshore on 10 February 2014 that ceased on 9 December 2016. From 25 October 2016 to 2 October 2020, Siskalia held a series of Bridging visas until her Temporary Skills Shortage visa was granted. That visa is due to cease on 2 October 2023. Although initially the Tribunal thought that Mr Candra may be attempting to mislead it about his family ties to Australia, at the hearing he was forthcoming about Siskalia being in Australia. The Tribunal has considered to what extent she may be a pull factor for Mr Candra to remain in Australia. Although her skilled visa does have a pathway to residency, even if she were to stay in Australia permanently, she is only one sister. In Indonesia Mr Candra has not only a sister and brother, but also his mother with whom he claims to have a particularly close relationship.
While the Tribunal questioned whether Mr Candra is a credible witness and can be believed because he was untruthful about his reasons for coming to Australia and discrepancies in his application and s.359 response, it has viewed positively the fact that almost immediately he reverted to telling the Tribunal the truth at the hearing about his reasons for coming Australia and was, otherwise, a convincing witness. The Tribunal accepts his evidence about his family in Indonesia and finds that it is a much stronger push factor for him to return after his study than Siskalia is a tie to Australia that might be an incentive for him to stay.
Nothing before the Tribunal indicates to it that in this case the Student visa program is being used to circumvent the intentions of Australia’s migration program or that Mr Candra is attempting to maintain ongoing residence in Australia.
Mr Candra explained in his statements and to the Tribunal at the hearing why he chose to study marketing and communication and why he chose his education provider, Australis Institute of Technology and Education. He also provided information about his course of study, including his future career plans.
In the s.359 response, Mr Candra states that he researched and visited Australis Institute before choosing to study there and ‘loved the college facilities and the student service help’. They explained a lot about their study program to him. Also, he lives at Berala in New South Wales which is close to Parramatta where the Institute is located. He claims that he finished his Diploma of Marketing and Communication in large part because of the people who taught him so well at Australis Institute.
In his submissions and at the hearing, Mr Candra was able to explain that he has chosen to take marketing courses because he strongly feels that marketing is at the heart of a successful business. In the GTS he states that he is learning, among other things, skills like ‘brand awareness, authority, credibility of customers and prospects, determine goals for the business and be able to develop a plan to make those goals be achieved’. He provided the Tribunal with a list of core competencies that he has mastered as part of his Diploma of Marketing and Communication and those units would demonstrably assist him if he were to open a café in his local area as planned.
The Tribunal finds that Mr Candra has demonstrated a level of knowledge about his study that would be expected of a genuine student. Taking into consideration Mr Candra’s reasons for his Australian study and his intentions once he completes his course, the Tribunal is satisfied that he is genuinely seeking to undertake the proposed course for the reasons declared and is not trying to maintain ongoing residence in Australia. There is no evidence that the Student visa program is being used to circumvent the intentions of Australia’s migration program in this case. The Tribunal has put considerable weight on Mr Candra’s continuous and successful study history since before his application in making that finding. However, given his evidence at the hearing that he does not require further study, were he to enrol in a further full-time course and apply for another Student visa the Tribunal would find that of considerable concern.
Value of the Course to Mr Candra’s Future
In considering the value of the course to Mr Candra’s future, whether the course is consistent with his current level of education and will assist him to obtain employment or improve employment prospects in Indonesia or a third country, and the relevance of the course to his proposed future employment in Indonesia are pertinent. Direction No. 69 also refers to the remuneration Mr Candra can expect in Indonesia or a third country, including in comparison to Australia, using the qualifications gained from the course of study.
According to the application and s.359 response, before coming to Australia Mr Candra completed the equivalent of Year 12 in Australia. The Tribunal accepts that he has completed a Certificate IV and Diploma in Marketing and Communications and finds that these are appropriate next level courses after completing High School. An Advance Diploma in the same discipline, being marketing and communications, is an appropriate level course for Mr Candra’s current level of education.
According to the GTS, after finishing his studies Mr Candra will go back to Indonesia and start his own café. He worked as a sales supervisor at CV Jaya Perkasa Pontianak for two years which developed his skills in sales. However, to set up a business he also needs business and marketing skills. By taking marketing and communications courses Mr Candra can learn more about the process of how to make a business successful. With his sales expertise and new marketing skills he is confident he will be able to develop a successful business. At the hearing Mr Candra was vague about his future business. He was honest about the fact that he has not thought through any details, has no business plan or any concrete ideas except that it would be a café in his local area. In response to its questions, he told the Tribunal that Frintina would assist him both with the financing and in the practical aspects of starting and running a business in Indonesia. His current education is so that he will have the skills to promote and develop the café once it is up and running.
In the s.359 response and at the hearing Mr Candra said that Frintina’s bubble tea shop earns at least AUD100 per day (around AUD3,000 or IDR30,504,731 per month). He claims this is significant money in Indonesia where salaries for staff are between AUD200 and AUD300 (IDR2,034,546 to IDR3,051,819) per month. He expects the café to make at least AUD3,000, and possibly as much as AUD5,000 (IDR50,841,218), per month.
The Tribunal’s research shows that Mr Candra’s numbers may not be entirely accurate. On 1 July 2021, the World Bank downgraded Indonesia to lower-middle income status with a gross national income per capita of USD3,870,[4] the equivalent of IDR4,803,376, not IDR3,051,819, per month. Further, there is evidence that the average annual salary in Indonesia is IDR444,777,421 (IDR37,064,785 per month)[5] and, while estimates vary, a person working in Indonesia typically earns an annual salary of around IDR103,888,750 (IDR8,657,395 per month)[6] or IDR145,200,000 (IDR12,100,000 per month),[7] although salaries do range from as low as IDR3,070,000. The Tribunal did not find salaries as low as IDR2,034,546 per month. Relevantly, the median salary in Indonesia is approximately IDR11,400,000 per month, meaning half the population earns less, but only 25% of the population earn less than IDR6,520,000. However, 75% of Indonesians are earning less than IDR30,800,000,[8] therefore Frintina’s earnings can be said to be significant in Indonesia.
[4] Bloomberg, Indonesia Loses Upper-Middle Income Status Amid Pandemic by ByClaire Jiao and Grace Sihombing, 8 July 2021
[5] Salary Explorer
[6] Average Salary Survey
[7] Salary Explorer
[8] Salary Explorer
The Tribunal has evidence that a person working as a café manager in Indonesia typically earns around IDR14,800,000 per month, but salaries range from IDR7,570,000 to IDR22,800,000.[9] Therefore, the Tribunal does not consider that it would be outside the realm of possibility that a café owner could clear between IDR30,504,731 and IDR50,841,218 per month. The Tribunal notes that a person working as a sales manager in Indonesia typically earns around IDR21,200,000 per month with salaries ranging from IDR11,400,000 to IDR32,000,000,[10] a salary Mr Candra would not have reached with two years experience.
[9] Average Salary Survey
[10] Salary Explorer
The Tribunal accepts Mr Candra’s evidence about his plans for the future despite how little they have currently been thought through. He has been consistent in this claim and honest with the Tribunal about the café’s preliminary stage. The Tribunal also considers that there are more obvious way Mr Candra could have claimed he would use his qualifications if he were being untruthful, and it notes that his is a family of business owners. It also accepts his claims about how he intends to use his new skills and his future potential remuneration. It is clear Mr Candra’s courses in marketing and communication will assist with his future café business in Indonesia, work he has continuously foreshadowed in his evidence that he intends to pursue. Further, the qualifications gained from his course of study will certainly increase the likelihood that the café business will be successful which will impact positively on Mr Candra’s remuneration prospects in Indonesia. There is evidence that not only will a successful café provide him with a higher salary than he was likely earning at his sales job, but it will afford him a higher standard of living in his home country than the vast majority of the population. Further, the Tribunal notes that Mr Candra will not have the resources to pursue his business plans in Australia and any position he is likely to win in Australia with his current qualifications and level of English will not give him a standard of living comparable to what he will have in Pontianak. The Tribunal finds the value of the course to Mr Candra’s future is significant.
Mr Candra’s Immigration History
Direction No. 69 provides that regard should be had to both Mr Candra’s visa and travel history. This includes his previous visa applications for Australia and other countries, as well as his previous travel to Australia and other countries.
Previous Visa History
When considering Mr Candra’s previous visa history, whether he has previously applied for an Australian temporary or permanent visa, or whether he has previously applied for visas to other countries are relevant. If there has been an Australian visa application consideration should be given to the status of that application, for instance if it is yet to be finally determined (within the meaning of s.5(9) of the Act), granted, refused, etc. Circumstances that have led to any refusal of a visa are also identified in Direction No. 69.
Mr Candra claims he has never had a visa for another country refused, and there is no evidence before the Tribunal that he has ever been refused a visa for any other country. In the application he states that he visited Hong Kong from 19 April to 12 May 2019 and spent a day in transit in Malaysia on 13 May 2019. Other than the Student visa under review Mr Candra has never had an Australian visa refused. He has not previously travelled to Australia and has not applied for any visas other than his Student visa since entering Australia. He was granted a Bridging Visa A (Class WA) Subclass 010 visa (BVA) by DHA on 13 February 2020 in relation to this student visa application.
Mr Candra applied for a Visitor visa in late 2019 which was granted on 24 October 2019. He arrived in Australia claiming to be a genuine temporary entrant on 7 December 2019. His Visitor visa ceased on 7 March 2020. The Tribunal considers it relevant that instead of leaving Australia on or around 7 March 2020 as undertaken in his Subclass 600 visa application, Mr Candra enrolled in a course of study and lodged a student visa application to continue his stay in Australia for an additional three years until 2023.
Initially Mr Candra claimed he came to Australia as a tourist. In both the GTS and the s.359 response Mr Candra claimed he came to visit his sister and it was not until he arrived that he discovered he could study in Australia. He claimed after spending a few weeks in Australia he then decided to stay and study. But at the hearing Mr Candra admitted to the Tribunal that he came to Australia with the intention of staying and studying if possible. The Tribunal put Mr Candra on notice that it was of concern that he had claimed in his visitor visa application that he was only coming to visit Australia when he actually intended to stay in Australia and apply for a further visa. After all, if he was untruthful about being a genuine temporary entrant to Australia in his visitor visa application it is possible that he is being equally untruthful in his current student visa application. Mr Candra was contrite, but insistent that he just wants to study in Australia and go home. The Tribunal has put considerable weight on his honesty and forthright manner at the hearing and his study record in accepting that that although he came to Australia to study, not as a tourist, he nonetheless only ever intended to stay in Australia temporarily.
The Tribunal acknowledges that after the time when a decision was made there is potential for an applicant’s intention to stay temporarily to change depending on later circumstances. The Tribunal also accepts that it is possible at the time of decision to harbour an intention to seek some other visa which would extend residence for a further finite period but will nonetheless lead to nothing more than a further temporary stay, and still intend genuinely to stay in Australia temporarily.[11] Mr Candra told the Tribunal that he came to Australia with the intention of staying and studying. But he was required to have an unqualified intention to go home at the time when the Visitor visa granted. What is required is an evaluation of the applicant’s intention as at the time of decision[12] and the Tribunal accepts that even though Mr Candra did come to Australia with an intention to study, he did not have the intention of staying indefinitely. Rather he intended to return to Indonesia if his study enquiries were fruitless and he has, and has always had, the intention to return home once any study he might engage in was completed. He was not untruthful in his visitor visa application and genuinely intended to stay temporarily when that visa was granted.
[11] Saini v MIBP [2016] FCA 858 per Logan J at [28]-[31]; although this case relates to Student visas it considers the same wording (‘genuinely intends to stay temporarily in Australia’) as in cl.408.213.
[12] Saini v MIBP [2016] FCA 858 per Logan J at [28] and [30].
The Tribunal finds that there is nothing in Mr Candra’s previous visa history that indicates that he does not intend genuinely to stay in Australia temporarily.
Previous Travel History
When considering Mr Candra’s previous travel history, whether he has previously travelled to Australia and his travel to other countries are relevant. If he previously travelled to Australia, consideration should be given to his compliance with the conditions of his visa, if he left before the visa ceased and, if not, why not (for instance circumstances beyond his control, etc.), and whether any previous visa was cancelled or considered for cancellation. The amount of time spent in Australia and whether the Student visa may be used primarily for maintaining ongoing residence are identified in Direction No. 69, including whether Mr Candra has undertaken a series of short inexpensive courses or has been onshore for some time without successfully completing a qualification. Factors such as whether Mr Candra has travelled to countries other than Australia and complied with the migration laws in those countries together with the reason for any non-compliance should also be considered.
Other than Australia, Mr Candra claims to have only travelled to Hong Kong and Malaysia. According to the application and he told the Tribunal that he has never not complied with the conditions of an overseas visa or departed outside the authorised period of stay. He further states that he has never had a visa for another country cancelled. There is no evidence before the Tribunal that suggests that Mr Candra has failed to comply with the immigration laws in any other country. Mr Candra has not previously travelled to Australia and has never had an Australian visa cancelled. At no time has he become an unlawful non-citizen.
Mr Candra first arrived in Australia in December 2019 on a Visitor visa, a criterion for which is that he genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted (a holiday). Instead of departing Australia he enrolled in and started study and then applied for the Student visa that is the subject of this review. However, as Mr Candra submitted at the hearing neither of those things was a breach of the conditions of his visa of entry. There is no evidence to suggest that Mr Candra breached any of the conditions of his Visitor visa and there is no indication that he has not complied with his current BVA or ever failed to comply with any of Australia’s migration laws.
Mr Candra has not spent a particularly long or unwarranted amount of time in Australia. He has not undertaken a series of short inexpensive courses or been onshore for some time without successfully completing a qualification. There is nothing in his immigration or study behaviour that reasonably leads to the conclusion that the Student visa is being used primarily for maintaining ongoing residence in Australia.
Where the Applicant is a Minor
Direction No. 69 provides guidance where the applicant for the visa is a minor. Because Mr Candra is not a minor this factor is not relevant to the Tribunal’s considerations.
Other Relevant Information
Direction No. 69 includes provision for the Tribunal to have regard to any other ‘relevant’ information provided by Mr Candra or otherwise available to it, which includes information that may be either beneficial or unfavourable to Mr Candra. The Tribunal has not identified any further information that would be relevant to its considerations.
Findings
If there is a settled intention, at the time of decision, to later seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention ‘genuinely to stay in Australia temporarily’.[13] While the Tribunal had concerns that Mr Candra arrived on a Visitor visa with plans to remain in Australia and study, it is persuaded that he was a genuine temporary entrant to Australia at the time of that decision. He has repeatedly indicated that he will return to Indonesia on completion of his study in 2023 and the Tribunal accepts the reasons why he wishes to return home as credible. The Tribunal notes no evidence has been presented that Mr Candra will require any additional study in Australia for his future career aims following the completion of his current course. When asked at the hearing, Mr Candra clearly stated that he does not require further study and does not intend to enrol in any further education in Australia. As noted above, should he enrol in another course and lodge a further application for a Student visa this would raise considerable concerns.
[13] Saini v MIBP [2016] FCA 858 at [30].
The Tribunal is satisfied from Mr Candra’s evidence that he is credible when he says that he wanted to study in Australia to acquire new skills in marketing to open his own café. The Tribunal views his positive study record as persuasive that he is genuinely studying a marketing and communication. This supports the conclusion that he is a genuine temporary entrant to Australia. On the basis of all the above evidence and findings, and having considered Mr Candra’s circumstances and immigration history, the Tribunal is satisfied that he intends genuinely to stay in Australia temporarily. Accordingly, Mr Candra meets cl.500.212(a) of the Regulations.
Does Mr Candra Intend to Comply with Any Visa Conditions - cl.500.212(b)
For an applicant to meet cl.500.212(b), the Tribunal must be satisfied that he or she intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa he or she previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject. If Mr Candra is granted a Student visa the following conditions must be imposed (cl.500.611(1)(a)): conditions 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed (cl.500.611(2)): conditions 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
There is no evidence before the Tribunal that Mr Candra has not complied with the conditions on his Visitor visa or his BVA. The Tribunal found Mr Candra to be a generally credible witness at the hearing and finds that he was being truthful when he undertook to comply with any conditions to which a Student visa granted to him may be subject. It is satisfied that Mr Candra intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).
Is Mr Candra a Genuine Applicant for Entry and Stay as a Student - cl.500.212(c)
For an applicant to meet cl.500.212(c), the Tribunal must be satisfied that he or she is a genuine applicant for entry and stay as a student because of any other relevant matter in addition to the requirements considered in cl 500.212(a) and (b). The Tribunal is unaware of any other relevant matters.
Accordingly, the Tribunal is satisfied that Mr Candra is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.211 of Schedule 2 to the Regulations; and
·cl.500.212 of Schedule 2 to the Regulations.
Mireya Hyland
MemberAttachment – 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.
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