Chauhan (Migration)

[2024] AATA 3067

Chauhan (Migration) [2024] AATA 3067 (13 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shyam Parulkumar Chauhan

CASE NUMBER:  2211055

HOME AFFAIRS REFERENCE(S):          BCC2020/2298006

MEMBER:Frank Russo

DATE:13 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 13 August 2024 at 4:10pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – previous degree study and enrolment in masters course – multiple enrolments and cancellations, no completed course and extended enrolment gap while holding bridging visa – enrolment at lower level in different subject area after tribunal’s first request for information – further requested information not provided after extensions of time – physical and mental health – work through most of relevant period – no information about employment plans – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2), 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 July 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 September 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant appeared before the Tribunal by telephone on 18 April 2024 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary applicant for entry and stay as a student.

7. In addition to the application, the applicant provided a copy of the delegate’s reasons for decision, notice of the decision from the Department and a copy of the photo page of his Indian passport.

8. On 2 February 2024 the applicant provided a response to an invitation from the Tribunal under s.359(2) of the Act to provide information, which consisted of a completed ‘Request for Student Visa Information’ form.

9. The applicant provided a response to the hearing invitation, as well as a confirmation of enrolment (CoE) for the Advanced Diploma of Civil Construction Design, issued by the Canberra Training School from 5 February 2024 to 1 February 2026, created on 2 February 2024.

10. At the hearing held on 18 April 2024, the Tribunal granted the applicant an extension of time of 14 days to provide evidence of his attendance of the Advanced Diploma of Civil Construction Design and his progress with the course of study. The Tribunal wrote to the applicant on 22 April 2024 to confirm this and granted him until 6 May 2024 to provide the information.

11. On the evening of 6 May 2024, the applicant sent an email to the Tribunal, requesting a further extension to submit evidence of his grades. He stated that he completed one unit as of the last week of April, and that he was waiting for a ‘study report’ from his professor in relation to his assignments. 7 May 2024, the Tribunal advised the applicant in writing that it was providing him with a further extension of time until 22 May 2024 to provide the information.

12. On 21 May 2024 the Tribunal received a further request from the applicant for an extension of time to provide the requested information. On 22 May 2024, the Tribunal advised the applicant in writing that it had granted him an extension until 4 June 2024 to provide the requested information. The applicant did not provide the requested information by the required date. No further request for an extension of time was made by the applicant. As at the date of this decision, the applicant has not provided the requested information and has not contacted the Tribunal to provide any further explanation.

13. The Tribunal has had regard to the above documents. The Tribunal also has a copy of the Department file and has had regard to the documents provided by the applicant on that file, which include a system-generated copy of the Student visa application, biodata pages of the applicant’s Indian passport, statements of marks and grades from Gujarat University, evidence of the applicant’s Indian high school education, evidence of overseas student health cover, PTE Academic score report, banking information, certificate of stamp duty, affidavit of support and identification information and a statement from the applicant in response to a s.57 natural justice letter from the Department.

    Genuine applicant for entry and stay as a student (cl 500.212)

14. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

15. In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. The Tribunal notes that Direction No 108 commenced on 23 March 2024. The Tribunal discussed the operation of Direction No 108 with the applicant at the hearing.

16. Direction No 108, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

17. 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.

    Evidence at the hearing

18. The applicant gave evidence that he arrived in Australia for the purpose of studying a Mater of Accounting. He stated that he had studied Accounting in his home country. He stated that after some time of studying the Masters course, he saw that he was not coping with the course.

19. The applicant confirmed that he is currently enrolled in an Advanced Diploma of Civil Construction Design. He stated that he is doing well with this course and really wants to study Construction. He stated that he will complete one unit at the end of April 2024, and he has just started another unit. He stated that there are six to eight units in total.

20. As to his future employment plans, the applicant stated that he wants to work in the construction industry. He stated that he has no plans for employment at this stage as he has not thought about it. He stated that he has not looked at job opportunities in civil construction at this stage as he has to focus on his studies.

21. The applicant confirmed that he had a Bachelor of Commerce from India, which he completed from 2014 to 2017. He gave evidence that he has not worked in India. He gave evidence that he is currently working as a sales representative for The Good Guys and earns $50,000 to $55,000 per year. He stated that he can work 48 hours per fortnight under his Bridging visa, though sometimes he just works 38 hours in a fortnight. The applicant confirmed that he previously worked at Harvey Norman on a casual basis and at JB Hifi in a part-time permanent role.

22. The Tribunal obtained further evidence from the applicant about his circumstances in his home country, his potential circumstances in Australia, the value of the course of study to his future, and his immigration history, the details of which are set out in my findings below. The applicant was also given the opportunity to provide the Tribunal with information about any other relevant matters. He stated that there are no other relevant matters, but he really wants to stay, and if he is given a couple of months, he can show the Tribunal his results and progress with his current course of study. The Tribunal raised various potential concerns with the applicant about his circumstances, the details of which are set out in my findings below where relevant.

    Adverse information from the applicant’s enrolment records

23. The Tribunal adopted the procedure in s.359AA of the Act to put to the applicant information from his enrolment records from the Provider Registration and International Student Management System (PRISMS) database. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that his PRISMS records show that he has been enrolled in the following courses in Australia:

    a.Master of Professional Accounting, which started on 9 July 2018, but was cancelled on 11 November 2019 due to unsatisfactory course progress;

    b.Master of Business Administration, which started on 2 September 2019, but was cancelled on 11 March 2020 because of non-payment of fees;

    c.Master of Business Administration starting on 11 May 2020, which was cancelled on 3 June 2021 due to the applicant notifying his education provider that he was ceasing his studies;

    d.Graduate Certificate in Management (Learning) from 29 March 2021, which was cancelled on 6 September 2021 due to non-payment of fees; and

    e.The applicant then remained unenrolled until 5 February 2024, when he commenced the Advanced Diploma of Civil Construction Design.

24. The Tribunal noted that this information may be relevant to the issue of whether the applicant is a genuine temporary applicant for entry and stay as a student for a number of reasons, including because it indicates that:

    a.The applicant arrived in Australia for the purpose of undertaking studies at the Masters level, but is now enrolled in a course at the Advanced Diploma level, which is a course at a lower AQF (Australian Qualifications Framework) level, which may indicate that he has enrolled in a relatively short and inexpensive course to maintain his stay in Australia;

    b.He was not enrolled in a course of study from 6 September 2021 to 5 February 2024, which is a period of over 2 years and 4 months, or over 28 months, which raises concerns about his claimed intention to remain in Australia on a temporary basis for the purpose of study;

    c.His current CoE was created on 2 February 2024, after the Tribunal wrote to him on 19 January 2024 to request information about his enrolments. This raises concern that he was able to obtain an enrolment within a short period of time after remaining unenrolled for over 28 months, and raises concern that he has enrolled in his current course of study primarily to meet the enrolment condition and to obtain a successful visa outcome;

    d.He has not completed any courses of study since commencing his studies in July 2018. His enrolment in the Master of Professional Accounting was cancelled because of unsatisfactory course progress. He did not complete his enrolment in the Master of Business Administration, which was initially the subject of the Student visa application under review. He was enrolled in the Graduate Certificate of Management (Learning) when his visa application was considered by the delegate, and he has not completed this course.

25. The applicant indicated that he understood the information and the relevance of it to the Tribunal’s decision. He indicated that he wished to respond to the information at the hearing. He stated that the information the Tribunal provided was correct and he agreed with it. He stated again that he started studying the Master of Professional Accounting but was unable to study the course. He then met with an agent who suggested to him that he study the Master of Business Administration. After some time, he encountered some issues and stated that he was a little depressed about his studies and was unable to work properly. He stated that he was unable to earn money and had trouble paying his fees. He asked his education provider for a payment plan, but the college cancelled his CoE. He didn’t know what to do, then he met another agent who referred him to another Master of Business Administration course. The applicant enrolled in this course but was stated that he was unable to finish a particular unit or to complete the course, and his CoE was again cancelled. He told the Tribunal that for some time he contacted different colleges to gain another CoE, but because of his payment history and his inability to cope with his previous study, he did not gain admission. He stated that after some time he thought he could study Construction Design. He then met another agent and asked for admission to this course.

26. The Tribunal questioned the applicant as to why it took him over 28 months to obtain another enrolment. The applicant responded that he was upset with his study, he was annoyed with what he was doing and was not coping. He stated that it took him six to eight months to get ‘back up’. He stated that he tried to gain admission to courses, but was not getting good connections. He again stated that he recently met with an agent who made a request to a college, which then gave him a CoE. He stated that he really wants to study, and that if he is given a couple of months, he can show progress with his current course of study. The Tribunal put to the applicant that it may have concerns that he has not provided sufficient explanation for such a lengthy period of non-enrolment and raised the timing of his current enrolment. The applicant responded that he was worried because he received a notice from the Tribunal. He stated that he met with a couple of agents, one of whom was able to get him a CoE. He stated that he had been meeting with this agent from 2022, but the agent had previously not been able to find the right college for him.

    Extensions of time granted to provide information about current course attendance and course progress

27. As noted above, the Tribunal gave the applicant 14 days from the date of the hearing to provide information about his attendance and course progress with his current course of study. Following the hearing, the applicant was given two further extensions until 4 June 2024 to provide this information in writing. To date, despite a further two months having passed since this deadline, the applicant has not provided the requested information and has not contacted the Tribunal to request any further extensions.

    Findings regarding the factors in Ministerial Direction No.108

28. Having considered the applicant’s claims against all the factors specified in Direction 108 and taking into account all the relevant information, the Tribunal is not satisfied that the applicant meets the genuine temporary entrant criterion. This finding is based on my findings with respect to a number of factors of concern in Ministerial Direction No.108.

    The applicant’s circumstances in his home country

29. As to whether the applicant has reasonable reasons for not undertaking the proposed course of study in his home country if a similar course of study is available there, I note that the applicant provided no information in his s.359(2) response to the question about the availability of similar courses in his home country, nor of his reasons for not undertaking the course in his home country. In response to a question about his reasons for any periods of non-enrolment, the applicant stated that he wishes to resume his academic journey and to gain skills in a field which holds great promise in his home country. The visa applicant and the applicant’s statement to the Department in response to a s.57 natural justice letter provide no information relevant to this factor, as the applicant’s current enrolment in the Advanced Diploma of Civil Construction Design was not created until February 2024, over 18 months after the delegate’s reasons for decision. The applicant was enrolled in the Master of Business Administration at the time of his visa application. He was assessed by the Department in relation to his subsequent enrolment in the Graduate Certificate of Management (Learning), even though his PRISMS record indicates that he was no longer enrolled in that course at the time of the delegate’s decision. I note that the applicant first arrived in Australia in July 2018 to complete a Master of Professional Accounting, which he did not complete. He has not completed any courses of study since arriving in Australia. At the hearing, the applicant stated that he wishes to complete a course of study prior to returning to his home country. While the applicant has demonstrated no research into whether similar courses are available in his home country, I accept that the applicant wishes to obtain a qualification in Australia, and therefore make no adverse findings on this occasion in relation to his reasons for not undertaking the study in his home country.

30. As to the extent of the applicant’s ties to his home country, the applicant confirmed at the hearing that his family ties include the presence of his parents and brother in India. He confirmed that he is not in a relationship. In his s.359(2) response, the applicant claims that he contacts his family in India most days through social media, and I accept this to be the case. The applicant has returned to his home country on one occasion since arriving in Australia, in February 2020. The applicant has provided no information about community ties in his home country. The applicant also provided no information about assets in his s.359(2) response. When questioned about this at the hearing, the applicant stated that he has no assets or property in his name, although his parents own their house and an office from which his father runs a taxation consultant business. I accept this to be the case. I also note and accept the banking information the applicant provided to the Department, together with an affidavit of support from his parents. The applicant has never worked in India and there is no evidence of any offers of employment in his home country. Overall, I find that the applicant has family ties to his home country which would serve as some incentive for him to return to his home country. I find that there is no evidence of community or employment ties to his home country.

1. As to the applicant’s economic circumstances, I have accepted that his parents own their own home and business premises, and I take these into account in assessing his circumstances. The applicant confirmed at the hearing that he has never worked in India. The applicant confirmed at the hearing that he is currently employed in Australia by the Good Guys, where he has worked as a sales representative since November 2023, and earns approximately $50,000 to $55,000 per year. Prior to that he also had periods of employment as a cashier and salesperson with Harvey Norman and JB Hifi since December 2022. The Tribunal put to the applicant at the hearing that his employment in the retail sector in Australia may present as an incentive for him to not return to his home country. The applicant responded that work is not his main concern for remaining in Australia. He stated that he works so he can pay his bills and fees and his focus is on study. Given the applicant was not enrolled in a course of study from 6 September 2021 until 5 February 2024, and was employed for most of the period from July 2022, I give little weight to this claim. Given the applicant’s employment and current salary in Australia and his lack of any employment history in India, I have concerns that his economic circumstances would present as a significant incentive for him not to return to his home country.

2. There is no evidence of any military service requirements or of any civil or political issues which would act as an incentive for the applicant to remain in Australia. When asked whether there are any political or civil unrest issues which would affect his return to his home country, the applicant confirmed there were no such reasons, but stated that since he was a child he had issues with his health, including epilepsy. He stated that there is a lot of pollution in India, which causes his body to react in a negative way. He has not experienced any reactions since arriving in Australia, but he experienced them again when he returned to India. He stated that this is not a reason for not visiting his hometown, but he preferred to look after himself and only visit once in three to four years. He confirmed that his health is not a reason why he would want to stay in Australia permanently, and I make no adverse findings in relation to the applicant’s evidence in this regard and note in any case that it does not relate to the issue of political or civil unrest in his home country.

3. There is no adverse evidence before the Tribunal regarding the applicant's circumstances in India, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.

   The applicant’s potential circumstances in Australia

4. The applicant first arrived in Australia on 16 July 2018, holding a Student visa which was granted until 17 September 2020 for the purpose of undertaking a Master of Professional Accounting. According to his PRISMS record, his enrolment in the Master of Professional Accounting was cancelled on 11 November 2019 because of unsatisfactory course progress. The applicant had already obtained an enrolment in the Master of Business Administration commencing on 2 September 2019, however, this was also cancelled on 11 March 2020 due to non-payment of fees. He obtained a second enrolment in the Master of Business Administration from 11 May 2020, however, this was cancelled on 3 June 2021, and according to his PRISMS record, his CoE was cancelled because the applicant informed his education provider that he was ceasing his studies. The applicant was enrolled in the Graduate Certificate in Management (Learning) from 29 March 2021, but that enrolment was cancelled on 6 September 2021 due to non-payment of fees. I note that the applicant’s PRISMS record indicates that he maintained continuous enrolment in Masters-level courses from November 2019 to June 2021, and from March 2021 to September 2021, he was enrolled in a Graduate Certificate course, which is a postgraduate course at AQF level 8.

5. The applicant then remained unenrolled from 6 September 2021 until 5 February 2024, when he commenced the Advanced Diploma of Civil Construction Design, which he is currently studying. I note that this is a gap in his enrolments of over two years and four months, which is a significant period of time. While I note that the applicant was holding a Bridging visa at the time and it is not a condition of the Bridging visa that he maintain enrolment, I nevertheless consider that a period of non-enrolment of such length is relevant in assessing the applicant potential circumstances in Australia, including his intentions in having applied for the Student visa.

6. I also note that the applicant’s enrolment in his current course of study after a period of non-enrolment of over 28 months, was obtained approximately a fortnight after the Tribunal wrote to the applicant on 19 January 2024 to request that he provide information about his course of study and his entry and stay in Australia as a student. I find that the timing of the applicant’s enrolment in his current course after such a lengthy period of non-enrolment, indicates that he obtained enrolment in this course primarily to meet the requirements for the Student visa, rather than because of a genuine interest in the course of study or obtaining the qualification. I find the applicant’s evidence at the hearing was insufficient to address my concerns about the length of this period of non-enrolment. He claims that he tried to obtain admissions, but could not make good connections. He claims that he then found an agent who was able to get him a CoE, but after further questioning, gave evidence that he first met this agent in 2022.

7. The Tribunal also gave the applicant the opportunity to demonstrate that he is performing well in his current course of study and gave him three extensions of time until 4 June 2024 to provide evidence of his current course attendance and course progress. Despite over three months having passed since the 18 April 2024 hearing, the applicant has provided no evidence in support of his claim that he is currently performing well in the Advanced Diploma of Civil Construction Design.

8. In assessing whether the applicant is using the Student visa to maintain ongoing residence, I have also considered the statement he provided to the Department in February 2021 in response to the Department’s s.57 natural justice letter, as well as his explanation for the lengthy period of non-enrolment from September 2021 to February 2024. In his statement to the Department, he states that:

   a.He commenced the Master of Professional Accounting at Charles Sturt University (CSU). After completing two semesters, he enrolled at Group Colleges Australia (GCA), however, in the process of doing so, he did not withdraw his enrolment at CSU according to proper processes. He believes this is why CSU cancelled his enrolment in the Master of Professional Accounting because of unsatisfactory course progress. He claims he never received any notice from CSU of unsatisfactory progress while he was enrolled there;

   b.GCA’s cancellation of his enrolment on 11 March 2020 was an error on their part, and his CoE was reinstated. By this stage he was too late for the March 2020 intake, so he had to wait for Term 1, Session 2 to commence in May 2020. He requested that GCA sort out his enrolment and the gap between the two enrolments, and he was asked to come back the following week, but a lockdown was then announced from 20 March 2020;

   c.He accepts that since arriving in Australia he has struggled to pass any subjects. He was confident in focusing on his studies at GCA, but COVID-19 got in the way;

   d.He agreed that he has made some mistakes and breached Condition 8202 of his Student visa, but assured the apartment that he would not make the same mistakes; and

   e.He has been suffering from homesickness, anxiety and depression since the day he landed in Australia.

9. In his s.359(2) response, the applicant states that he would like to bring the Tribunal’s attention to the challenges he has faced since his Student visa was refused in July 2022. He states that this resulted in an immense emotional and financial toll and led to a period of unforeseen difficulties. He states that he was unable to pursue any course because of the mental and financial challenges that overwhelmed him. He states that he made earnest efforts to secure admission to various colleges and universities, but faced repeated rejection, primarily because he was holding a Bridging visa. He then decided to enrol in the Advanced Diploma of Civil Construction Design.

10. I have had regard to these explanations. The applicant has not provided any transcripts or records of results for his enrolments with CSU or GCA, but on the basis of the information in his PRISMS record, I accept that he was enrolled in the Master of Business Administration at GCA prior to the CSU cancelling his enrolment in the Master of Professional Accounting a couple of months later. I am therefore prepared to accept the applicant’s explanation that his failure to properly cancel his enrolment with CSU may have contributed to his CoE for the Master of Professional Accounting being cancelled because of unsatisfactory course progress. I also make no adverse findings about the applicant’s first enrolment in the Master of Business Administration being cancelled, given he was enrolled again in the same course two months later. However, I find that the applicant has failed to provide sufficient explanation for why he has not successfully completed any courses of study since arriving in Australia in July 2018 and for his failure to be enrolled in a registered course for a period of over 28 months.

11. As for the applicant’s claim that he has suffered from homesickness, anxiety and depression since arriving in Australia, the Tribunal noted at the hearing that the applicant had provided no evidence in support of such a claim and questioned whether he had received a diagnosis for a mental health condition or any treatment. The applicant responded that he has not had any major sickness since arriving in Australia. He stated that he has been unable to focus on his studies, but he did not visit any doctors and he has no evidence to provide to the Tribunal in this regard. I find that there is insufficient evidence to support any claim by the applicant that he has suffered from a mental health condition which affected his ability to study or to obtain enrolment.

12. The applicant currently proposes remaining in Australia at least until February 2026 to complete the Advanced Diploma of Civil Construction Design. This will bring his proposed stay in Australia to approximately 7 years and 6 months, which is a lengthy period of time considering the applicant’s enrolment history and academic performance to date. At the hearing, when the Tribunal questioned the applicant about the value of the Advanced Diploma of Civil Construction Design to his future, he indicated that one option would be for him to also complete a Bachelor degree and Masters degree in Australia. I note that such a proposal would further extend the applicant’s stay well beyond his current proposal to remain for approximately 7 years and 6 months.

13. The applicant has not completed any courses of study since arriving in Australia in July 2018, he was not enrolled for a period of over 28 months and there is no evidence that he is making satisfactory progress with his current course of study. Overall, I consider that the length of time the applicant has remained in Australia and his enrolment history during this time raise concerns that the Student visa is being used to maintain ongoing residence and to circumvent the intentions of the migration programme.

14. There is no evidence that the applicant has any family or community ties in Australia. I accept there is no evidence of any family or community ties which would present as a strong incentive for the applicant to remain in Australia, and I take this into account in assessing his circumstances as a whole.

15. I accept the applicant’s evidence that he is not in a relationship. I find that there is no evidence that he has entered into a relationship of concern for a successful Student visa outcome.

16. As to the applicant’s employment ties, I have already found that his current employment with The Good Guys and his salary of approximately $50,000 to $55,000 a year may present as a strong incentive to remain in Australia. I also note in passing some potential concern regarding the applicant’s potential to work in the construction industry in Australia. When asked about his plans to work in the construction industry, the applicant stated that he was not too sure whether he intends to work in Australia or in India. He stated that he has not thought about work, but he can see a future in Australia. However, given there is no evidence that the applicant has any current employment ties in the construction industry in Australia, I make no adverse findings in relation to this information.

17. Given the length of time the applicant has remained in Australia, I make no adverse findings regarding his knowledge of living in Australia. While the applicant has not provided the information the Tribunal requested about his progress with his current course of study, I make no adverse findings regarding his knowledge of his proposed course of study and education provider.

    Value of the course to the applicant’s future

18. The applicant holds a Bachelor of Commerce, which he obtained in India. He has not previously worked in India. He is currently enrolled in the Advanced Diploma of Civil Construction Design. While I acknowledge that decision makers should allow for reasonable changes to career and study pathways, I note that the applicant already has a higher qualification (a Bachelor degree) from his home country and that he arrived in Australia in 2018 with the purpose of completing a Masters degree. Following a gap of over 28 months since ceasing to study at the postgraduate level, the applicant has now enrolled in a course at the Advanced Diploma level (AQF 6), which is below that of a Bachelor degree. I have concerns that the applicant is enrolled in a course of study which is not consistent with his current level of education and may therefore provide little value to the applicant. In response to this concern, the applicant stated that he cannot see any future with the Bachelor of Commerce in India, but if he completes his current course and then completes a Master of Construction, his future is much brighter in Australia. I find the applicant’s response was not compelling as it relies on the applicant completing an additional Masters-level course after he completes his current course, and his response does not demonstrate that he has considered how the Advanced Diploma of Civil Construction Design will assist him to obtain employment or improve his employment prospects in his home country. At the hearing, the applicant demonstrated little thought as to the employment opportunities the proposed course of study might open up for him in his home country, other than making very general and generic statements. He claimed that he will work as a ‘civil constructor’ but that he had not looked at the potential employment opportunities that could arise by completing his current course of study.

19. Similarly, in his s.359(2) response, the applicant provided no information in response to questions about his employment plans after he completes his proposed study, and no information about the remuneration he expects to receive in his home country, or a third country, using the qualifications he will gain from his current course of study. In response to a question about his reasons for not being enrolled for a period of time, the applicant states that he has identified a new path that resonated with both his personal interests and the booming infrastructure industry in India. He claims that he has a passion for civil construction design, but otherwise makes generic statements about the value of this course. He states that it presents him with opportunities which compelled him to choose this course. He states that it will help him fulfil his educational aspirations and contribute positively to the growth and development of his skills in a field that holds great promise in his country.

20. Having considered the evidence as a whole, I find there is insufficient evidence to indicate that the proposed course of study will assist the applicant to obtain employment opportunities or improve his employment prospects in his home country. The applicant has provided no convincing evidence of any research into employment prospects in construction in India or any other country, other than making very general statements. I also find that there is insufficient evidence regarding the remuneration the applicant could expect to receive in his home country or a third country, compared to Australia, using the qualification to be gained from the proposed course of study. Overall, I am not satisfied that the proposed course of study will be of value to the applicant’s future.

    The applicant’s immigration history

21. The applicant’s immigration history refers to both his visa and travel history. As noted above, the applicant first arrived in Australia on 16 July 2018, holding a Student visa which was granted until 17 September 2020 for the purpose of completing a Master of Professional Accounting. The applicant has subsequently held related Bridging visas. The applicant has not completed any courses of study since arriving in Australia over six years ago. While I have had regard to the applicant’s explanations for not making greater progress with his courses of study, I have great concern as to the applicant’s non-enrolment in a course of study for a period of over 28 months from 6 September 2021 to 5 February 2024. I am also concerned that the applicant’s current enrolment after such a lengthy period of non-enrolment appears to have been prompted by the Tribunal’s request of 19 January 2024 that he provide information about his course of study. I have concerns that the applicant’s current enrolment in the Advanced Diploma of Civil Construction Design has been motivated primarily by his desire to obtain a successful Student visa outcome, rather than a genuine interest in completing this course of study or obtaining the qualification.

22. This concern is reinforced by the applicant’s evidence at the hearing, which demonstrated minimal research into his proposed course of study or the value it would provide to his future. The applicant now proposes remaining in Australia until at least February 2026 to complete the Advanced Diploma of Civil Construction Design, which will bring his stay in Australia to over 7 years and 7 months. He also indicated at the hearing that he may wish to enrol again in a further Masters degree after completing this qualification.

23. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia, and his enrolment history as set out in his oral evidence and his PRISMS record, I have concerns that a further Student visa would be used primarily to maintain ongoing residence. In particular, I consider that since arriving in Australia over six years ago, the applicant has not successfully completed any courses of study and remained unenrolled for a period of over 28 months after applying for the Student visa. The applicant did not complete the course of study which he was enrolled in at the time of his visa application (the Master of Business Administration). He did not complete the Graduate Certificate in Management (Learning), for which he was assessed against the genuine temporary entrant criterion by the Department. He has now enrolled in a vocational course at the Advanced Diploma level after being prompted for details of his enrolment by the Tribunal. I have concerns that the applicant has now enrolled in a relatively inexpensive vocational course (compared to his enrolments at the Masters level) after a lengthy period of non-enrolment, primarily to maintain ongoing residence.

1. While I note the concern raised by the delegate that the applicant may have breached condition 8202 of his Student visa, the delegate did not explain why this was the case. I note that the applicant maintained enrolment in Masters-level courses until the expiration of his Student visa on 17 September 2020. While his enrolment in the Master of Professional Accounting was cancelled on 11 November 2019 because of unsatisfactory course progress, the applicant has explained that at the time this CoE was cancelled, he was already enrolled in the Master of Business Administration at GCA. I am prepared to accept his claim that he did not cancel his enrolment in the Master of Professional Accounting properly when he transferred to another education provider, which is why his enrolment was then cancelled by CSU on 11 November 2019. The applicant has not provided evidence of his transcripts for any of his Masters courses, but on this occasion I am prepared to give him the benefit of the doubt and accept his explanation. I therefore make no adverse findings regarding his previous compliance with the conditions of his Student visa.

2. I confirm that I do not make adverse findings regarding the remaining factors relevant to the applicant’s immigration history. There is no evidence to indicate that the applicant has any other visa applications which are yet to be finally determined. There is nothing to indicate that the applicant has had a visa cancelled or considered for cancellation or that he has other visa applications which were refused. There is no evidence of any adverse migration history to any other countries. However, for the reasons provided above, I have concerns regarding whether the Student visa may be used primarily for maintaining ongoing residence.

   Any other relevant matters and conclusion regarding findings

3. The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.

4. In weighing up the applicant’s circumstances, I note concerns raised in relation to several factors, including factors relating to the applicant’s potential circumstances in Australia, his economic circumstances, the value of the course of study to his future and his immigration history.

5. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).

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

7. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

   DECISION

8. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

   Frank Russo
   Member

   
   

   Attachment – Direction No.108

   DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

   (Section 499)

   I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).

   Dated: 21 March 2024

   Clare O’Neil

   
   

   Minister for Home Affairs and Minister for Cyber Security

   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 - Preliminary

   Name of Direction

   This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

   It may be cited as Direction No. 108.

   Commencement

   This Direction commences on 23 March 2024.

   Revocation

   Direction No. 69, given under section 499 of the Act, is revoked.

   Interpretation

   Act means the Migration Act 1958.

   Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.

   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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).

   This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.

   This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

   The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.

   Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

   Preamble

   The Australian Government operates a student visa program 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 program 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 – 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 or Student Guardian 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 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.

   iii. b. Previous travels to Australia or other countries, including:

   iv. 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;

   v. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

   vi. 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

   vii. 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 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.