Chebrolu (Migration)

Chebrolu (Migration) [2020] AATA 2407 (11 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Manideep Chebrolu
CASE NUMBER:  1902951
HOME AFFAIRS REFERENCE(S):          BCC2018/5169055
MEMBER:Peter Booth
DATE:11 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 11 June 2020 at 8:41am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, residence and study history – studied at lower than highest level but abandoned course – incentives to return to home country and future employment plans – vague evidence of value of study to future plans – using student visa program to extend stay in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 February 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 20 November 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine temporary entrant.
The applicant appeared before the Tribunal, by telephone on 4 June 2020 to give evidence and present arguments.
The applicant was assisted in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate’s decision dated 4 February 2019 refusing his application for a student visa. The applicant understood that the issue for determination was whether he was a genuine temporary entrant.
The applicant confirmed information provided to the Tribunal as follows. Prior to arriving in Australia he completed a Bachelor of Technology (electronics and communication of engineering) between June 2007 and April 2011. Prior to arriving in Australia he was employed in “machine testing” between January 2012 and January 2013. He derived an income of approximately AU$2000 annually whilst employed in that capacity.
He arrived in Australia on 8 March 2013. Since that time he has returned to India on five occasions, for periods ranging between three days and 45 days. He applied for the student visa in question in November 2018. He has held several visas whilst residing in Australia. He obtained a student visa valid from February 2013 to September 2015, a second student visa valid from November 2015 to September 2016 and thereafter a temporary graduate visa valid from November 2016 to November 2018.
As to his study history, he studied an English course between March 2013 and June 2013 and then started a Master of Information Technology in July 2013. He said that he ceased studying the course in July 2015. When asked why he said “because I had a backlog in units, could not complete, and was transferred to Charles Sturt University”. Apparently he then completed the Master of Information Technology at Charles Sturt University between July 2015 and August 2016. He then enrolled in a Diploma of Leadership and Management in January 2019 but did not complete it. When asked when he ceased that study he said “October 2019”. When asked why he ceased that study he said “because units were not related to Master of Information Technology”. The Tribunal inquired whether he abandoned that course or was excluded from it. In response he said “I stopped studying”. He did not elaborate. The Tribunal observed that it took him nine months to establish that it was not the appropriate course. In reply he said “no, the enrolment was in January 2019, classes started at the end of February or March”. The Tribunal inquired whether he had perused the course curriculum prior to commencing this course of study. He said “yes”.
The applicant said that he is currently studying an Advanced Diploma of Leadership Management. He had produced a letter of offer from the course provider dated 20 April 2020 in that regard. He said that he had accepted the offer and the Tribunal observed that a confirmation of enrolment document in respect of the course had been produced to the Tribunal. The course was due to commence on 24 April 2020 and to be completed by 20 April 2021.Tribunal inquired as to his employment intentions when he completes his current course of study. He said “I want to become an IT professional, go back to India, work in a multinational company as an IT consultant”. The Tribunal observed that he already had skills in that regard obtained up to a Master’s level. He said “I have learnt technical skills, I need to know skills of business negotiations”.
The Tribunal enquired whether the applicant had studied between October 2019 and May 2020 to which he said “no, summer holidays”. He added “there was no course which was available at that time”.
The Tribunal enquired what the applicant had done during the two-year period of the graduate visa. He said “I tried a lot of companies, but they require permanent resident”.
The applicant said that he is currently employed as a console operator in the petrol station earning approximately AU$16,000 annually. His immediate family in India comprise his father, mother and sister. When asked whether he had assets in India he said “yes in my parents name, I have no idea of the assets, mostly on my parents and me”. When asked to estimate the value of those assets he said “$200,000”.
Tribunal asked the applicant whether he could estimate his prospective earnings when he returned to India having completed his course of study. He said “AU$20,000”.
The Tribunal observed that the applicant had provided a statement in support of his application and asked whether he wanted to add anything to it. The applicant declined. The undated statement is in the following terms:
This statement is written to address Genuine temporary entrant criteria in reviewing my student visa application.
Through this statement, I address following criteria:
·Reasons for choosing to undertake Leadership & Management course
·Relevance of Leadership & Management course to my academic/employment background
·Relevance of Leadership & Management course to my future career/education plans
·Reasons for choosing the education provider: Angad Australian Institute of technology
·Reasons for choosing to study in Australia rather than in my home country India
·My planned living arrangements in Australia
Reasons for choosing to undertake Leadership & Management course
By doing this course, I am planning to learn following skills in the fields of People management and Business operations management:
·Manage organization’s quality customer service
·Manage organization’s budget & financial plans
·Manage organization’s operational plans
·Develop a highly skilled team & manage their performance
·Manage business risk by Implementing continuous improvement in business
·Manage marketing process
·Serving business clients on globally
Along with the above-mentioned learning outcomes, I endeavor to acquire skills of how to run an Information technology (I.T) establishment successfully on a small to medium scale range of operations.
Relevance of Leadership & Management course to my academic/employment background
After my graduation, I worked with a highly acclaimed I.T. organization HCL technologies for about a half a year in India and I was specialized in SOFTWARE TESTING area.
Academically, I have completed technical courses in Communication & Information technology at Bachelor and master’s level, respectively. Through the above-mentioned courses, I have learned
·      Algorithm design and development
·      Compilers - (Compiler Construction, Compiler Theory)
·      Data structures
·      Formal languages - (Formal Methods, Functional Programming)
·      Human Computer Interaction
·      Object Oriented Programming
·      Operating systems - (Unix, Linux, Xenix, Network OS)
·      Programming - (C, C++, Objective C, Visual C, Basic, Visual Basic, Java, Assembler, Cobol, Pascal, PL/1, Fortran, PHP, Pearl, AS3, FoxPro, and similar)
·      Software Engineering
·      Systems Programming
·      Testing strategies and methods - (Software Testing)
By studying Diploma of Leadership and Management course, I want to acquire new skills in following areas:
·      Project Management
·      Quality management
·      Manage workforce planning
·      Business Process Reengineering
·      Manage budgets and financial plans
·      Manage an information management system
Through my previous studies, I have learnt I.T technical skills, but never had opportunity to learn about People management and Business operations management. Advance Diploma of Leadership and Management will help me assist in achieving these objectives.
Relevance of Leadership & Management course to my future career/education plans
I want to pursue my career in information technology field as a Business Associate/ICT Consultant with an Internationally acclaimed organizations like Google, Amazon, Face book or Accenture etc. Studying Advance Diploma in Leadership management will provide me soft skills of managing a large technical team and assist in business development processing. These newly learning skills will make me a Bargainer to achieve desired outcome for business negotiating with Business clients for an Information technology (I.T) organization.
Reasons for choosing the education provider: Angad Australian Institute of technology
This college is popular for providing courses in Management and Business sector. The glimpse of their simulated learning environment for the above-mentioned course have provided me confidence that I will achieve REAL OUTCOMES from learning current industry business practices in an advanced economical country. Also, this college is primarily located in the Melbourne CBD and is easily accessible by Public transport. I understand that this college is accredited with a national body and the education they provide is a quality education.
Reasons for choosing to study in Australia rather than in my home country India
I am planning to study in Australia because the Vocational Education & Training is founded on Australian Quality Framework which means my qualifications are recognized anywhere in the world.
In my home country, the Vocational education and training is not founded as Australian system. Especially, the Vocational education and training qualifications are not nationally recognized. The teaching is mostly concentrated on theory concepts; practicality of the knowledge from these courses is non-current with industry trends. The skills I will possess by doing an Advance Diploma in Australia are equivalent to the skills to be possessed after doing Master of Business Administration (MBA) in India.
Also, I understand that education in Australia is streamlined under Australian quality framework and that ensures that education I receive is quality accredited whereas in my country there is no such framework or quality endorsement at vocational level.
Also, the English language requirement is also not at very high level as in some other advanced countries I have to pass both Standardized test (SAT) and Test of English as a Foreign Language (TOFEL) to obtain an admission.
My planned living arrangements in Australia
I have an adequate fund for study, stay in Australia and return to my home country after completion of my studies in Australia. I am currently living in a shared house, Preston Suburb of Victoria. These living arrangements are providing me an opportunity to learn different cultures of people from other corners of the world. I have a family of my Parents & Sister living outside Australia and we have a very strong family bond between us. Our relationship is a strong incentive for my return to home country India, after completion of my studies in Australia.
The matters set out in the statement have been taken into account and given appropriate weight.
The applicant was invited to add anything further to his application for review. He said “the main reason of the course, I want to be an IT professional, when I go back I will have an international degree, I want a job in a multinational company”.
In conclusion Tribunal asked the applicant whether he had applied for permanent residency in Australia to which he said “no”. When asked whether he intended to apply for permanent residency in Australia he said “no”.
In response to the request for information pursuant to s.359(2) of the Act, the applicant provided some narrative responses which are also relevant. As to his reasons for studying in Australia he stated:
I am planning to study in Australia because the vocational education & training is found on Australian quality framework which means my qualifications are recognised anywhere in the world. In my home country, vocational education and training qualifications are not nationally recognised. The teaching is mostly based on theoretical concepts unlike in Australia wherein I can practically understand the concepts. I will get exposure to best industry practices.
As to his future employment plans he stated:
After completing my studies in Australia, I would like to work in a multi-national c company like Google, Accenture, Facebook, etc . As an IT consultant/senior software associate. By studying leadership and management course, i will gain skills of managing technical teams and assist in business development process. These skills will help me to achieve desired outcomes for business negotiation with clients for an information technology organisation.
As to his expected future remuneration in his home country he stated:
I was working as a machine tester in a production lab in the testing domain testing - HCL Technologies, Chennai India. I used to earn about AUD 2,000 per annum. I have completed my Master of Information technology in Australia. I would like to gain leadership and management skills through course so that i can earn up to AUD 20,000.
The applicant also provided a variety of documents to the Tribunal as follows: a provisional certificate from a foreign university in respect of the Bachelor of Technology in electronics and communication engineering dated 16 July 2011, a certificate of completion in respect of the Bachelor of Technology course dated 1 October 2012, a certificate of completion of a Master of Information Technology (computer networking) dated 12 December 2016 and an academic transcript in respect of the Master of Information Technology degree. These documents have been taken into account.
The applicant’s migration agent was invited to make submissions. He pointed to a reference in the delegate’s decision in which it was stated that the applicant had not returned to his home country. The applicant’s migration agent said that was incorrect. The Tribunal observed that in a review hearing such as this, all matters were decided fresh. The migration agent declined to make any further submissions.
In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl.500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.
The Tribunal has considered the applicant’s circumstances in his home country. The applicant is unmarried and is from India. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. When considering the applicant’s circumstances in his home country, the Tribunal therefore finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the proposed study. The Tribunal accepts that the applicant may have family ties to India, however, given the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 8 March 2013 as a holder of a student visa valid to September 2015. The proposed study would extend the applicant’s stay until at least April 2021. The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia. Whilst the Tribunal accepts that plans can change, this is not the conduct of a genuine temporary student. Rather, it suggests the applicant has decided to extend his stay in Australia by utilising the student visa programme.

The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. First the applicant gave very vague evidence about the utility of his current course and its relevance to any future employment. Secondly the applicant did say that he intended to seek employment as an information technology consultant. The applicant already has significant skills in that regard and has worked in a related field in India. The utility of an Advanced Diploma of Leadership and Management to the vague plans of future employment is difficult to ascertain.
The Tribunal has considered the applicant’s study history since arrival and notes that he commenced study in a Master of Information Technology course in 2013. He had already completed a Bachelor of Technology course in India in electronics and communication. He completed the Master of Information Technology course in Australia in 2016. Once completed he commenced a Diploma of Leadership and Management Course but abandoned it after approximately nine months. He said that his reason for abandoning the course was because “the course units were not related to Master of Information Technology”. The reasons why he started the course and why he abandoned it are unclear or somewhat unconvincing.
The Tribunal notes that this course plan is inconsistent with the applicant’s work history (in information technology) and is inconsistent with his plans when he initially entered Australia. The applicant now wishes to pursue advanced leadership and management in Australia. The course is asserted to have relevance to very vague future plans.
The applicant has provided a statement in which he attempts to address the genuine temporary entry criterion. It is vague and unconvincing insofar as his future plans are concerned and the utility of his current course is concerned.
The Tribunal notes that the applicant worked as a “machine tester” in India. Apparently this is related to information technology matters. He has also completed a bachelor’s degree in technology. He has completed a Master of Information Technology in Australia. The Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has experience in the information technology field and extensive qualifications in the information technology field. The Tribunal therefore is not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to his future beyond the qualifications he already holds.
The Tribunal has had regard to whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.
The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.
The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Given the disparity in economic circumstances between India and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to India.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Therefore the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 8 March 2013 the applicant has spent in excess of seven years in Australia but has returned to his home country on five occasions during that period for variously between three days and 45 days on relevant occasions. However the extended period that he has resided in Australia indicates that he does not appear to have strong personal ties to India. Based on this evidence the Tribunal assesses the applicant’s incentive to return to India to be poor.
On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable him to achieve that goal. The applicant was granted a student visa valid from February 2013 to September 2015 and a second student visa valid from November 2015 to September 2016, both of which would have facilitated the applicant’s study in his desired field. Indeed, the applicant completed his Master of Information Technology degree in August 2016. Thereafter he applied for and was granted a temporary graduate visa, valid from November 2016 to November 2018. Shortly prior to the expiry of the temporary graduate visa, the applicant lodged this application. His reason for doing so was to study a vocational course in leadership and management. This is a significant regression in studies from his Bachelor of Technology obtained in India and the Master of Information Technology obtained in Australia. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study. The Tribunal has also had regard to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily. The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study and overall academic progress. The applicant appears to be using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.
There is no further evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India relative to others in that country.
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, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Peter Booth
Member

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

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

[2020] AATA 2407

11 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction