Cherono (Migration)

Cherono (Migration) [2021] AATA 4204 (16 August 2021)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Wilfred Kipkoech Cherono
CASE NUMBER:  1931592
DIBP REFERENCE(S):  BCC2019/4344938
MEMBER:Frank Russo
DATE OF DECISION:  16 August 2021
DATE CORRIGENDUM
SIGNED:7 September 2021
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:
Incorrect decision date listed on the Member’s signature block on the cover page of the Decision Record.
Correct decision date should be 16 August 2021.

Frank Russo
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Wilfred Kipkoech Cherono
CASE NUMBER:  1931592
HOME AFFAIRS REFERENCE(S):          BCC2019/4344938
MEMBER:Frank Russo
DATE:16 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 16 July 2021 at 5:55pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No.69 – Diploma of Early Childhood Education and Care – Bachelor of Community Services – study records – enrolment requirement – future career plans – employment in Australia – strong personal ties to home country – income disparity – consistent study pathway – value of the course – travel and visa history – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 October 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 30 August 2019. 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 delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
The applicant is a 24-year-old Kenyan national.
The applicant appeared before the Tribunal by telephone on 27 July and 11 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Swahili (Kiswahili) and English languages.
The applicant was assisted in relation to the review by his registered migration agent, who also attended the hearing by telephone.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 applicant for entry and stay as a student.
In addition to the application form and copy of the delegate’s reasons for decision, the applicant provided the Tribunal with the following other documents:
a.A submission from the applicant’s agent, dated 7 January 2020, together with a attachment labelled ‘Father’s documents’, containing the passport and birth certificate of the applicant’s father, and affidavit in support, tax compliance certificate, title deed for land at Eldoret and purchase order for fuel;
b.A completed ‘Request for Student Visa Information’ form (s.359(2) response) and further submission from the applicant’s agent, dated 27 January 2021; and
c.Following the first hearing, the applicant provided on 9 August 2021 a confirmation of enrolment (CoE) for the Diploma of Community Services at Lead College from 16 August 2021 to 13 August 2023, as well as a further submission from the applicant’s agent, dated 8 August 2021.
The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.
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 is a 24-year-old Kenyan national. The application for review is in respect of the applicant’s enrolment in a Diploma of Early Childhood Education and Care, which commenced on 30 September 2019, followed by a Bachelor of Community Services, which he was scheduled to complete on 8 September 2023.
The delegate’s decision notes that the applicant first arrived in Australia in 2016, for the purpose of completing a higher education degree, but in the three years up to the delegate’s decision, he had not completed any studies in the higher education sector. He completed a Diploma of Health Science in 2018 and a Certificate III in Early Childhood Education and Care in 2019. The delegate noted the applicant had worked as a care worker in a nursing home since March 2017.
The applicant gave evidence at the first hearing that he arrived in Australia in February 2015 (according to his movement record, he arrived in February 2016) holding a Student visa, to complete a Diploma of Health Science and then a Nursing degree. He stated that his intention at the time was to obtain the Nursing qualification, gain experience in the field and then return to Kenya to find work in a hospital. The applicant told the Tribunal that he was unable to cope with these studies and he ended up failing some units. He completed the Diploma of Health Science, but because of the difficulties he had, he decided to enrol in a package course leading to a different degree, with enrolment in the following courses:
a.Certificate III in Early Childhood Education and Care;
b.Diploma of Early Childhood Education and Care; and
c.Bachelor of Community Services.
The applicant gave evidence that by the date of the first hearing he had completed the Certificate III and the Diploma courses (he completed the Diploma of Early Childhood Education and Care in December 2020).
The applicant also gave evidence that he did not commence the Bachelor of Community Services because the college he was enrolled with, Stotts College, ‘withdrew’ the enrolment. When questioned when this enrolment was cancelled, the applicant responded it was in February 2021. He stated that the college had told him his Student visa was refused and he was a high risk, despite holding a Bridging visa. The Tribunal questioned the applicant a second time regarding when the CoE was cancelled by Stotts College, to which he stated that the college didn’t tell him anything about it until it was time for him to enrol and he physically went to do so.
The Tribunal used the procedure in s.359AA of the Act, to put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal put to the applicant that according to information in his PRISMS enrolment record, his enrolment in the Bachelor of Community Services at Stotts College was cancelled on 22 October 2019, and there is no record of him being enrolled in a course of study after his completion of the Diploma of Early Childhood Education and Care on 6 December 2020. The Tribunal put to the applicant that this information indicated that he was not currently enrolled in a course of study, and therefore the enrolment requirement had become the determinative issue. In addition, he had not been enrolled for a period of over 6 months, which may be relevant to assessing his intentions in remaining in Australia.
The applicant requested a 10-minute adjournment to respond to this information, which the Tribunal granted. Following this adjournment, the applicant told the Tribunal that he was not made aware of the cancellation of his CoE for the Bachelor degree course at the time it was cancelled. He proceeded to completed the Diploma course and only found out about the cancellation of the CoE when he went to enrol. He stated that he became aware of the cancellation in January 2021. He stated that he didn’t enrol in another course because he was awaiting the outcome of the Tribunal review, as to obtain enrolment in his chosen course he will need the Student visa. The applicant enquired whether he was able to obtain enrolment in another course.
The applicant’s representative submitted that the applicant was under the mistaken belief that he still had a CoE for the Bachelor of Community Services. He submitted that if the applicant had been alerted sooner, he could have made alternative arrangements. He submitted that Stotts College informed the applicant that they could not offer him enrolment because his visa had been refused, and the applicant was under the mistaken apprehension that he should wait for the Student visa to be granted. The applicant had told him that he wished to stay enrolled within the same course parameters. The applicant’s representative requested the Tribunal exercise its discretion to adjourn the hearing to enable the applicant to obtain enrolment.
The Tribunal expressed some concern that in his s.359(2) response, the applicant had provided copies of the CoEs for the courses he had completed, but not that for the Bachelor of Community Services, which may suggest that he was aware at that time (29 January 2021) that the CoE for the Bachelor course had been cancelled, but did not raise it in his response about the courses he had been enrolled in. The Tribunal however considered that the applicant had proceeded to complete the Certificate III and Diploma courses leading to the Bachelor of Community Services, and noted that the applicant’s explanation was consistent with the timing of the cancellation of the CoE (which was cancelled on 22 October 2019, four days after the delegate’s decision). Accordingly, the Tribunal considered that under the circumstances it would be reasonable to adjourn the hearing for 14 days, to allow the applicant to obtain enrolment.
The hearing was resumed on 11 August 2021. Prior to the second hearing, the applicant provided the Tribunal with a CoE for the Diploma of Community Services at Lead College, which he was due to commence on 16 August 2021. The Tribunal indicated that it was satisfied that the applicant now met the enrolment requirement for the grant of the Student visa, and the determinative issue had once again become whether he is a genuine temporary applicant for entry and stay as a student.
The applicant gave evidence that the Diploma of Community Services will provide an entry to the Bachelor of Community Services and will provide him with a one-year credit for the Bachelor degree. He gave evidence that in total it will take him approximately four years to complete both courses. He stated he will completed the Diploma by August 2023 and the Bachelor degree around September 2025. The applicant stated that he wanted to complete the Bachelor degree as early as possible, but he was unable to obtain another enrolment into this degree, which is why he has now had to take the path of enrolling in the Dioploma course to gain entry into the Bachelor degree course.
As to his future career plans, the applicant stated that he intends to return to Kenya to start his own childcare facility, which could also incorporate an orphanage. He stated that he could also use the Bachelor of Community Services to find employment with the national government or the county government in Kenya. He provided examples of such roles within community services, such as focusing on youth empowerment, drugs and narcotics, education and childcare.
The Tribunal questioned the applicant about the research he had conducted into such roles and the potential remuneration with respect to each. He indicated that in relation to the childcare facility/orphanage, he had undertaken research by speaking to friends and to similar entities to which he wished to establish. He stated that the monthly profit from such a venture could be 30,000 to 50,000 Kenyan Shillings, which he stated is the equivalent of approximately $600 AUD per month. He stated that employment with the government in community services roles could provide a salary of approximately 50,000 to 100,000 Kenyan Shillings, which he stated was around $1,200 AUD per month.
The applicant stated that with the orphanage he would be able to apply for government grants, as well as obtain funds from donors, which will allow the facility to operate. The applicant stated that he will also fund the childcare centre/orphanage with assistance from his father, who is willing to provide the applicant with a property to fund the project, and that he had provided the Tribunal with details of the ownership of this property.
The applicant gave evidence that he had no tertiary qualifications prior to arriving in Australia. He stated that he chose to study his proposed course in Australia because he is already physically present here and he believes the standard of education is higher than in Kenya, including better facilities.
As to his personal ties, the applicant confirmed that his parents, three brothers and a sister live in Kenya. His father owns a petrol station as well as 56 rental properties. He stated that all of his extended family is in Kenya. In Australia he has one brother, who arrived in 2018 and holds a Student visa. He stated that his brother has completed Project Management at ACU, and he is planning to return to Kenya once he graduates on 5 September 2021. The applicant currently shares accommodation in Australia with his brother. The applicant gave evidence that he is in a relationship with a woman in Kenya, whom he has been dating for about 6 years. He does not have any children.
The applicant confirmed that he continued to work with Brightwater in the aged care sector, where he earns about $35,000-37,000 per year and worked 35.4 hours per fortnight. The Tribunal put to the applicant concerns raised by the delegate that his employment as a care worker may be a disincentive to return to his home country, and that his proposed studies in Community Services are aligned to his employment in Australia as a career, and have little to do with his employment prospects in his home country. The applicant explained that he obtained work as a care worker because he was previously enrolled in Nursing. The applicant stated that he had attempted to find jobs in the childcare industry, but employers told him they would only employ him if he had a valid Student visa. He stated that he is looking to change his employment once he is settled in his studies and has a valid Student visa. He stated that once he completes the Diploma of Community Services he will look for work experience in the community services field.
The applicant confirmed that he had not previously received a visa refusal decision and he does not have any applications for other classes of visa which are yet to be finally determined. He gave evidence that he has complied with the conditions of his visa while in Australia.
Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account all the relevant information, the Tribunal is satisfied that the applicant meets the genuine temporary entrant criterion.
As to his circumstances in his home country, the Tribunal is satisfied that the applicant has strong personal ties to his home country, including both family and financial ties. All of the applicant’s immediate family and his extended family live in Kenya, apart from one of his brothers, which is in Australia on a temporary basis. The applicant gave evidence that his father has substantial assets in Kenya, including 56 rental properties, a family home, agricultural land and a petrol station. The applicant has provided supporting evidence of only some of these assets, however, he has provided consistent descriptions of these assets in his written submissions and his oral evidence. The applicant has provided a copy of a title deed for land which his father intends to give to him for the purpose of establishing a business, together with an affidavit in support from his father. The applicant also gave evidence that he is in a relationship with someone who remains in Kenya and this relationship has continued for six years. The Tribunal considers the applicant has strong personal ties which would serve as an incentive to return to his home country.
The Tribunal notes the disparity in the applicant’s stated potential income from running a childcare centre/orphanage in Kenya, compared to his income from his part-time work in the aged care sector in Australia. However, the Tribunal also takes into account the disparity in the cost of living between Kenya and Australia and the evidence regarding the assets of the applicant’s family, including supporting evidence of a property to be transferred to the applicant. Accordingly, the Tribunal makes no adverse findings regarding the applicant’s economic circumstances.
The Tribunal notes that the applicant originally arrived in Australia for the purpose of obtaining a Bachelor degree in Nursing. He gave evidence of the difficulties he had in studying Nursing, and his reasons for wishing to now obtain a Bachelor of Community Services. The applicant has given evidence that he continues to remain in Australia for the purpose of fulfilling his original plan of obtain a Bachelor degree qualification. The Tribunal makes no adverse findings regarding the applicant’s reasons for wishing to complete the course of study in Australia, rather than his home country.

The applicant confirmed at the hearing that there are no civil or political issues that would act as an incentive for him to remain in Australia. There is no evidence of any military service requirements. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in Kenya, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.
As to the applicant’s potential circumstances in Australia, the applicant first arrived in Australia in February 2016 for the purpose of completing a Bachelor of Nursing. The applicant completed an initial Diploma of Health Science, but due to difficulties with his studies, transferred to a package course leading to the Bachelor of Community Services, which he planned to complete in September 2023. The applicant completed the Certificate III and Diploma of Early Childhood Education and Care, which were to articulate to the Bachelor of Community Services at Stotts College. However, the applicant’s enrolment in this Bachelor degree course was cancelled by Stotts College on 22 October 2019, four days after the visa refusal decision.
The applicant now proposes remaining in Australia to complete a Diploma of Community Services at Lead College, which he was due to commence on 16 August 2021 and end on 13 August 2023. This Diploma will allow him entry into the Diploma of Community Services. The Tribunal notes that the applicant is now effectively wishing to extend his stay in Australia for a further two years to complete the course of study which was the subject of the Student visa application. This will, on his evidence, extend his stay in Australia until approximately September 2025, bringing his total stay in Australia to over 9-and-a-half years. This is a significant length of time to remain on temporary visas, however the Tribunal notes the setback of two years to the applicant’s plans as a result of the cancellation of his enrolment by Stotts College.
The applicant has not undertaken a series of courses in unrelated fields. Following his decision not to proceed with the Bachelor of Nursing, his study pathway has remained constant. To the applicant’s credit, he has not enrolled in an unrelated course for the sake of meeting the enrolment requirement for the grant of the Student visa, but rather has enrolled in a Diploma of Community Services, which also articulates into the Bachelor degree course which he was originally enrolled to undertake.
While it is of some concern to the Tribunal that the applicant was not enrolled in a course of study for approximately six months after December 2020, it notes that the applicant completed the foundation courses leading to his proposed study, and gave evidence that he did not become aware of the cancellation of his enrolment until he attempted to enrol in January 2021. Given the applicant’s good academic record in completing the Certificate III and Diploma of Early Childhood education and Care, the Tribunal considers the applicant should be given the benefit of the doubt and be allowed to complete his proposed course of study and then return to his home country, as he has repeatedly stated.
The Tribunal notes the presence of the applicant’s brother in Australia, but gives this only little weight as an incentive for the applicant to remain in Australia, given his brother holds a temporary visa and the applicant indicated he has plans to return to Kenya in September 2021.
The Tribunal has also considered the applicant’s employment in Australia. While the Tribunal considers it may offer some incentive for the applicant to remain in Australia, the Tribunal does not consider the applicant has proposed further studies in Community Services in order to build a career in the aged care sector, but for his stated purpose of obtaining a Bachelor degree qualification. Overall, the Tribunal does not consider the applicant has strong ties to Australia.
There is nothing to suggest the applicant has entered a relationship of concern for a successful Student visa outcome. The Tribunal also found the applicant’s knowledge of his proposed course to be reasonable.
The Tribunal accepts that the course of study will be of value to the applicant’s future. The Student visa application was made in respect of the applicant’s enrolment in courses leading to the Bachelor of Community Services, and he has now had to enrol in a Diploma course as an entry pathway into the same Bachelor degree course at another college, as a result of his CoE being cancelled immediately following the visa refusal decision. The applicant does not have any tertiary qualifications from his home country, and the Tribunal considers his proposed qualifications in Community Services are related to his proposed work in the community services sector and will improve his employment and business prospects.
The applicant’s immigration history refers to both his travel and visa history. While the Tribunal has noted the potential concern regarding the length of the applicant’s proposed stay in Australia, it also notes the setback of two years which has resulted from the cancellation of his CoE for the Bachelor of Community Services by Stotts College, and his need to now seek an alternative pathway to obtain this qualification. The applicant has otherwise made reasonable progress with his academic goals in Australia, having completed the Diploma of Health Science, as well as Certificate III and Diploma of Early Childhood Education and Care. The applicant first enrolled in a package course leading to the Bachelor of Community Services in September 2018, and since then has maintained a consistent pathway towards obtaining this qualification, which is consistent with his stated career plans. There is no evidence that the applicant has previously been refused a visa or had a visa cancelled or considered for cancellation. There is no evidence that he has applied for other classes of visa which are yet to be finally determined. There is no evidence that he has not complied with the conditions of his visas. Overall, the applicant’s immigration history raises no concerns.
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. The applicant now proposes undertaking the Diploma of Community Services as a pathway to his chosen Bachelor degree, in a field not unrelated to the Bachelor degree course for which he originally arrived in Australia. The Tribunal considers that at present there is insufficient evidence to indicate the applicant is using the Student visa programme to maintain ongoing residence in Australia or to circumvent the migration programme.
The Tribunal notes that it has had the benefit of detailed submissions from the applicant’s agent, further supporting evidence regarding the applicant’s financial circumstances and of seeing the applicant complete the foundation courses which were intended to articulate into the Bachelor of Community Services at Stotts College. Despite the applicant having been placed in a difficult position by the cancellation of his CoE for this course, he did not enrol in short courses of no value to his proposed future, but has instead now found an alternative pathway to obtain his chosen qualification. The Tribunal considers that under the circumstances, the applicant should be given the opportunity to now complete the Diploma of Community Services, with the aim of then obtaining enrolment in his chosen Bachelor degree course prior to returning to his home country.
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.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
The applicant has provided with his visa application an undertaking to comply with any conditions the subject of which the visa is granted. There is no evidence to demonstrate that this would not be the case, and based on the applicant’s stay in Australia to date, including his evidence of compliance with current visa conditions and his progress with his studies by completing the Diploma course which was partly the subject of his visa application.
On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).
There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern by the Tribunal that the applicant is not a genuine applicant for entry and stay as a student.
Accordingly, the Tribunal is 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 appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.
Frank Russo
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.

[2021] AATA 4204

16 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies