Chand (Migration)

Chand (Migration) [2023] AATA 231 (12 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Namit Kumar Chand
CASE NUMBER:  2119149
HOME AFFAIRS REFERENCE(S):          BCC2020/1649292
MEMBER:T. Quinn
DATE:12 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 12 January 2023 at 5:59pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–– applicant failed to provide requested information – no evidence of any academic progress –applicant had spent a considerable amount of time in Australia – applicant was not a genuine applicant for entry and stay as a student – lack of genuine study ––an economic incentive to remain in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 29 May 2020, the applicant applied for a Student visa (the visa) to undertake study in Australia (‘the application’).[1]
[1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the former and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 16 November 2021, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]
[2]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application
On 14 December 2021, the applicant applied to this Tribunal for a review of the delegate’s decision.[3]
[3] Pursuant to sections 338(2) and 347 of the Act.
In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed since making their application. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information for the purposes of determining the outcome of their application for review. To this end, on 6 September 2022, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The s359(2) letter requests that a questionnaire (‘the questionnaire’) be completed by the applicant.
The applicant sought and was granted an extension of time to respond to the s359(2) and subsequently responded to the s359(2) letter, including filing the questionnaire, on 19 October 2022 which was not within the prescribed timeframe. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action.[4]
[4] Pursuant to section 359C(1) of the Act.
I find that the applicant did not provide further information as requested. In these circumstances, section 359C of the Act applies and pursuant to section 360(3) of the Act the applicant is not entitled to appear before the Tribunal. The effect of section 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[5]
[5] Hasran v MIAC [2010] FCAFC 40.
I have considered whether, in the circumstances of this case, information that the applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide relevant information already.
I have considered whether I should adjourn the review under section 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, I have had regard to decisions where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.[6] I have also had regard to other case law relevant in these situations.[7]
[6]See Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2001] FMCA 28.
[7]See Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014) which considered analogous issues, as well as the decision of Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (28 August 2014).
The applicant has had a fair opportunity to provide relevant information and I elect not to exercise my discretion to adjourn the review any further to allow the applicant more time.[8] I therefore make my decision having regard to the information I have before me, including the information previously provided by the applicant to the Department and the Tribunal.
[8]under section 363(1)(b) of the Act.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. A decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
For the following reasons, the decision under review is affirmed in this case. In reaching my decision, I have had regard to:
a.all written material filed by or on behalf of the applicant; and
b.other relevant documents on the Tribunal and Department files.
Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in my reasons as set out below. The reasons incorporate reference only to that information that I have found to be fundamental or materially significant to the determination of the issues in the case.[9]
[9]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].
STATUTORY FRAMEWORK
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. Information in relation to Clauses 500.211 and 500.212 is attached to this decision.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies clause 500.212(a), I must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (‘the Direction’), made under section 499 of the Act. The Direction is attached in full to this decision but broadly it requires Tribunal Members to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist, but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Direction is a lawful direction of the Minister.[10] I am therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[11] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before me. However, I recognise that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate. In this regard, I note well established case authority as to the proper approach by decision makers to guidelines such as the Direction[12] and McNab J’s view that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.[13]
[10] In accordance with section 499 of the Act.
[11]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].
[12]Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]), Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) and Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]).
[13]Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47] per McNab J).
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a 34-year-old male Nepalese citizen who first arrived in Australia in May 2016 on a student visa.[14] He has remained onshore on two further student visas, the latter of which expired on 29 May 2020, the same date as the applicant made the application which is the subject of this review.[15] This timing raises concerns about whether the applicant may be using the student visa migration program to maintain residence, particularly when taken into consideration together with all other evidence as set out in this decision.
[14]See the questionnaire and delegate’s decision.
[15]See the questionnaire and delegate’s decision.
Prior to coming to Australia the applicant completed High school in Nepal in 2008 and worked as a video editor from February 2008-September 2012 and as an animator/VFX from October 2012-March 2015.[16] The applicant has not provided information in relation to his income in those roles in the questionnaire.
[16]See the delegate’s decision and the questionnaire.
The applicant has provided certificates of completion to the Department for the following courses in Australia:
a.A general English course from December 2016-December 2017; and
b.A Certificate IV in Business from May 2019-May 2020.[17]
[17]See the questionnaire.
The applicant’s application which is the subject of this review was to undertake a Diploma of Screen and Media and a Bachelor of Interactive Media.[18] However, it appears he has abandoned these courses and he makes no reference to them in the questionnaire. I am puzzled by this.
[18]See delegate’s decision.
The Tribunal undertook a PRISMS search on 27 October 2022 which indicated that the applicant was not enrolled. The Tribunal wrote to the applicant on 16 November 2022 pursuant to section 359A of the Act, making enquiries about his non-enrolment. The applicant sought and was granted an extension of time to respond to this correspondence and on 14 December 2022 the applicant filed new confirmations of enrolment for a Certificate IV in Kitchen Management and a Diploma of Hospitality Management with cumulative course dates from January 2023-January 2025. I am very troubled by this. The confirmations of enrolments were created on 14 December 2022, the same day as his response to the Tribunal’s letter of 16 November 2022. I am concerned that the applicant has recommenced study at this time to ensure he satisfies the requirements of clause 500.211 of the Regulations. This in turn raises questions about whether he may be using the student visa migration programme as a means of maintaining residence in Australia, which is in circumvention of the intentions of the student visa migration program. The applicant’s new confirmation of enrolments were accompanied by a brief statement about his lengthy non-enrolment period.
The applicant has not provided any evidence of having made any meaningful academic progress from January 2018-May 2019 or since May 2020. This is deeply troubling. A particularly effective way for an applicant to demonstrate that they hold a genuine desire to study in Australia, while awaiting a review determination following an initial student visa refusal, is to take positive steps towards achieving the educational qualification they had proposed in their original application. That is to say, an applicant should progress with their proposed course of study in Australia notwithstanding that their visa application has been refused. In doing so, by the time the application on review proceeds to a decision by the Tribunal, an applicant will be a position to produce compelling evidence that shows they are a genuine applicant for a student visa. In this case, the applicant has provided no such evidence. I do not consider this to be the kind of behaviour that is consistent with that expected of a genuine applicant for entry and stay as a student in Australia. I am concerned about the true nature of the applicant’s intentions in applying for the student visa and, taking the evidence outlined in this decision as a whole, I am concerned the applicant is using the student visa programme to circumvent the intentions of the migration programme.
The applicant has made submissions that the COVID19 Pandemic had an impact on him and his wife who fell pregnant in 2021.[19] The applicant states that he and his wife had to be careful about the virus because of her pregnancy, that they had to earn enough money to run their home, they gave birth to their daughter on 27 January 2022 and borders were closed, and the financial and emotional stress had a major impact on his mental health.[20] He has also filed a Statement of Purpose with the Department claiming that he was enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management from February 2018-March 2020 and was undertaking the theoretical component of his study but could not attend the practical components as he had gastritis, he saw an overseas doctor and then completed his Certificate IV in Business. The applicant has not filed any corroborating medical or psychological evidence in relation to these submissions, save for his daughter’s birth certificate. I accept that the applicant and his wife were pregnant and gave birth during the Pandemic and I have made allowance for this in coming to my conclusions in this case. However, there is no psychological or medical evidence, beyond the evidence of the applicant himself, that provides an adequate account of his mental state or his gastritis during the relevant lengthy periods where there is no evidence of any academic progress. I am unable to form any view as to whether the applicant was suffering any clinically diagnosable mental health or other medical condition that put his suffering into a category that may have been caused him to have no evidence of any academic progress from January 2018-May 2019 or since May 2020.
[19]See submissions of 14 December 2022.
[20]See submissions of 14 December 2022.
Further, the applicant has been working onshore since his arrival in May 2016, save for three months at the end of 2019.[21] I consider if an individual is residing onshore on the basis of student visa and/or a bridging visa based on a claimed intention to study, such study should take priority over work. There are financial requirements before such visas are granted. It raises concerns about an individual’s true intentions in residing onshore if when doing so they are working but not studying, in breach of the conditions of a student visa upon which their right to reside is based and/or in contrast to the claims in their outstanding student visa application that they wish to remain onshore to study.
[21] See the questionnaire.
The applicant has not made the sort of academic progress that one would expect of a genuine student that has been onshore for over six years – having completed only 12 months of general English and one vocational level course.
The applicant has lived in Australia for over six years. It is difficult to reconcile that length of time with the meaning of ‘temporary’ as required by the Act and Regulations in relation to student visas. This period also raises serious concerns about the true nature of the applicant’s intentions onshore and whether he can be considered a genuine temporary entrant.
The applicant plans to use his Australian qualifications to secure work as a chef at a five-star hotel in Nepal and then build his own restaurant with a new concept.[22] He has not provided information in relation to his expected remuneration using the qualifications. I allow for reasonable changes to study and career pathways and accept that this study is consistent with the applicant’s current level of education. I accept that courses such as these may be relevant to and assist and improve an individual with future plans as claimed by the applicant in the questionnaire but place only minimal weight in favour of the applicant in this regard given the lack of detail in his submissions in this regard.
[22] See the questionnaire.
The applicant has left blank the section of the questionnaire enquiring about his community ties to Australia.[23] The applicant is living onshore with his immediate family: his wife and young daughter.[24] He has begun his family onshore, his child having been born in January 2022.[25] The applicant has been living in Australia for over six years, which has included considerable time working and studying (and necessarily engaging in those respective communities).[26] The length of the applicant’s stay in Australia, now over six years, indicates that the applicant has a preference to remain onshore. It is reasonable to conclude that after over six years onshore the applicant has cultivated a satisfactory life and established strong ties to the Australian community acting as a strong incentive for him to remain onshore. As each day passes, those ties strengthen.
[23]          See the questionnaire.
[24]          See submissions of 14 December 2022 and the questionnaire.
[25]          See submissions of 14 December 2022 and the questionnaire.
[26]          See the questionnaire.
The applicant states in the questionnaire that he has returned to Nepal but does not list the dates or reasons. In his application filed with the Department he states that he returned to Nepal to visit family: for 27 days in 2017; and for two weeks in 2019.[27] The COVID19 Pandemic and associated restrictions made international travel virtually impossible from early 2020 to early 2022 and I place no weight against the applicant in relation to that period. The applicant’s mother and brother live in Nepal and he contacts his family in Nepal twice a week.[28] The applicant has left blank the section of the questionnaire enquiring about community ties to his home country.[29] He claims in the statement of purpose filed with the Department that his parents own land in Nepal and have a strong annual income and he is obliged to care for his parents in their old age. I accept that the applicant may have community ties to Nepal acting as an incentive for him to return to his home country, but I do not consider the evidence supports a finding that those ties are acting as a significant incentive for him to return.
[27]          See pages 9-10 of applicant’s application in the Department file.
[28]          See the questionnaire and pages 5-6 of the applicant’s application filed with the Department.
[29]          See the questionnaire.

The applicant states that the education system in Nepal is miles away from being globally competitive and the Australian education system and degree are globally recognised, and educators do not compromise with quality or excellent education with one of the finest student support systems in the world.[30] The applicant has provided reasonable reasons for undertaking his study in Australia rather than his home country or region.
[30] See the questionnaire.
The applicant has been working onshore: at a casino from May 2016-August 2017 earning AUD55,000 per annum; as a kitchen assistant from September 2017-October 2018 earning AUD48,000 per annum; as a cook from November 2018-September 2019 earning AUD50,000 per annum and from December 2019-August 2020 earning AUD38,000 per annum; and as an education consultant from September 2020-August 2021 earning AUD40,000 per annum.[31] The applicant has expenses onshore of AUD20,940 per annum.[32] He states his family are supporting him financially onshore and has provided evidence to the Department in this regard.[33] Taking the evidence as a whole, I am concerned that the applicant’s economic circumstances onshore are acting as a significant incentive for him to remain.
[31] See the questionnaire.
[32] See the questionnaire.
[33]See statement of purpose and pages 6-7 of the applicant’s application filed with the Department and financial documents in the Department file.
The applicant has not listed any travel in the questionnaire but states at page 10 of his application to the Department that he travelled to the United Arab Emirates for twelve days in 2015 to ‘visit’. There is no evidence that the applicant has had any travel, visa or immigration issues in the past save for those listed in this decision. The applicant does not have any potential military service obligations or political or civil unrest concerns in Nepal.[34]
[34] See the questionnaire.
There is not sufficient evidence to satisfy me that the applicant genuinely intends to stay in Australia temporarily. Taken as a whole, the information provided by the applicant in relation to their application raises questions about the applicant’s true intentions in residing in Australia. I am particularly concerned about the length of time the applicant has now been onshore for and the limited academic progress he has made during that time and I consider that the visa is being sought primarily to maintain residence in Australia.
Accordingly, the applicant does not meet clause 500.212 and I am not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by clause 500.212.
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. Therefore, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
T. Quinn
Member
Attachment – Clauses 500.211 and 500.212 of Schedule 2 of the Regulations
Enrolment (clause 500.211)
·Clause 500.211 requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[35]
[35]Clause 500.211(a) of Schedule 2 to the Regulations.
·‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[36]
[36]Regulation 1.03 of the Regulations.
·All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[37] Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[38] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.
[37]Section 10 of the ESOS Act.
[38]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).
Genuine Temporary Entrant
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.
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.

[2023] AATA 231

12 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice