Chiodini Schmockel (Migration)

Chiodini Schmockel (Migration) [2021] AATA 1219 (19 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Luisa Chiodini Schmockel
CASE NUMBER:  1930608
HOME AFFAIRS REFERENCE(S):          BCC2019/4337870
MEMBER:David Thompson
DATE:19 April 2021
PLACE OF DECISION:  Perth
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 19 April 2021 at 11:30pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – incentives to remain or return – study and employment history – English and vocational courses at lower levels and in different subject area than previous highest study – shorter, more practical courses than those available in home country – value of courses to applicant’s future – previous visa held as secondary applicant ceased on breakdown of relationship – almost immediate application for own visa – trips to home country – decision under review remitted
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 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 she was not satisfied that the information the applicant had provided was sufficient to demonstrate that the applicant was a genuine temporary entrant.
The applicant appeared before the Tribunal on 11 December 2020 to give evidence and present arguments.
The applicant was assisted in relation to the review by their registered migration agent.
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 meets the requirements of cl.500.212.
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.
Evidence
As well as giving evidence at hearing, the applicant provided the Tribunal with the following items of documentary evidence:
a.the delegate’s decision record and notification letter, each dated 14 October 2019;
b.a completed ‘Request for Student Visa Information Form’, provided in response to a request for information made by the Tribunal pursuant to s.359(2) of the Act;
c.Confirmation of Enrolment (CoE) 8402A839, in respect of the applicant’s enrolment in an Advanced Diploma of Business at Keystone College of Business and Technology (Keystone), scheduled to run from 5 September 2016 to 3 September 2017;
d.a certificate of completion of an Advanced Diploma of Business, issued by Keystone on 3 September 2017;
e.a certificate of attainment in English issued by Lexis English and dated 13 November 2015;
f.a certificate of attainment in English – IELTS Preparation Court issued by Lexis English and dated 17 June 2016;
g.CoE AE450B28, in respect of the applicant’s enrolment in a Certificate IV in Accounting and Bookkeeping at West Australian Institute of Further Studies (WAIFS), scheduled to run from 3 October 2019 to 24 June 2020;
h.a certificate of completion of a Certificate IV in Accounting and Bookkeeping, issued by WAIFS on 3 July 2020;
i.CoE AE452059, in respect of the applicant’s enrolment in a Diploma of Accounting at WAIFS, scheduled to run from 9 July 2020 to 3 January 2021;
j.a document entitled ‘client unit enrolments’ issued by WAIFS and date 20 October 2020;
k.a certificate of attendance issued by WAFES in respect of the applicant’s Diploma in Accounting course, dated 20 October 2020;
l.CoE AE453F78, in respect of the applicant’s enrolment in an Advanced Diploma of Accounting WAIFS, scheduled to run from 4 January 2021 to 5 July 2021;
m.A PTE Academic Score Report issued on 17 June 2020;
n.a degree certificate for a Bachelor of Systems and Production Engineering issued by Universidade do Estado de Santa Catarina dated 16 March 2015;
o.the applicant’s Brazilian passport;
p.a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s student visa, dated 17 December 2019;
q.the applicant’s response to the NOICC dated 22 December 2019; and
r.a notification letter and decision record in respect of the proposed cancellation of the applicant’s student visa, both dated 30 January 2020.
The Tribunal has also obtained a copy of the Department’s file in respect of the applicant’s relevant visa application, and has considered the documents contained in it. To the extent that those documents have not already been noted above, the relevant documents contained in that file are:
a.the applicant’s visa application;
b.a document issued by Banco do Brasil, giving the balance of a joint savings account maintained in the name of the applicant and her sister, Laura Chiodini Schmockel;
c.a letter of financial support provided by the applicant’s mother ,Ms Cintia Chiodini, dated 29 August 2019;
d.Ms Cintia Chiodini’s Brazilian identity card;
e.a bank statement issued by Banco Bradesco SA, showing the balance of Ms Cintia Chiodini’s account as at 29 August 2019;
f.an untranslated document identified by the applicant as a balance statement for an investment account held in her mother’s name in a Brazilian fund;
g.the applicant’s Genuine Temporary Entrant statement, dated 27 August 2019; and
h.a certificate of completion of a Tax Substitution Course held by Sescon/SC dated 29 August 2019.
In these reasons for decision, the documents listed in paragraphs 9 and 10 above are referred to by their paragraph numbers (for instance, ‘document 9(a)’ for the document described in paragraph 9(a)).
Prior to hearing, the Tribunal obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). Information from that record was put to the applicant pursuant to s.359AA in the course of hearing. This will be discussed further below.
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.
Background
The applicant is a citizen of the Federative Republic of Brazil. She first arrived in Australia in July 2015 as the holder of a student visa (Class TU (Student- Temporary) subclass 570), in order to undertake studies in English. Prior to coming to Australia, she completed and was awarded a bachelor’s degree in Systems and Production Engineering at the Universidade do Estado de Santa Catarina. That degree was conferred upon her on 21 February 2015. After completing her English courses, she undertook studies in business. She applied for a student visa on 30 August 2019, in order to undertake courses in accounting. That visa application was refused on 14 October 2019, giving rise to this review.
The applicant’s circumstances in her home country
The applicant gave evidence at hearing that her whole family, comprising both her parents and her sister, live in Brazil. Her parents are separated. The applicant stated that she contacts her mother and sister everyday by WhatsApp voice calls, and once a week by a WhatsApp video call. She stated further that she speaks to her father once a week separately. The applicant stated that she had no community involvements in Brazil. She also stated that she has no property in that country, although her parents own property a share of which she expects to inherit eventually. She explained that she has a right to use that property, as a result of the divorce settlement between her parents, but gave no more details evidence as to the basis for that right, and none as to its extent. The documentary evidence before the Tribunal (documents 10(e), (f)) establishes to the Tribunal’s satisfaction that the applicant’s mother is a person of some means. There is no evidence before the Tribunal suggesting that the applicant’s circumstances in her home country present her with any incentive to avoid returning there at the end of her studies.
The applicant gave evidence of a history of employment in Brazil, stating that she worked as a business analyst for a bearings manufacturer for 1 ½ years before coming to Australia, and used her engineering knowledge in that role. She stated that she also did project management work with the accounts department of the same firm. It is clear from the documentary evidence before the Tribunal that the applicant started that employment before finishing her engineering degree, and continued in it for some months afterwards before leaving for Australia. The applicant stated that she believed she could obtain a position with the same firm on her return to Brazil, and indeed that she intended to try and do so. The Tribunal accepts this evidence. The Tribunal finds that the applicant’s family ties and employment prospects in Brazil give her a significant incentive to return there at the end of her studies.
The applicant gave evidence at hearing that she has no military service obligations to complete upon her return to Brazil, and no concerns as to civil or political unrest, at least in her part of the country. The Tribunal accepts this evidence. It does so conscious of the fact that the country has been harshly affected by the COVID-19 pandemic in a number of ways, but taking into account that this is the case for many, if not most, of the countries in the world, and that the applicant’s current course of studies will not end until July 2021.
At hearing, the applicant was asked whether courses equivalent to those she proposed to undertake were available in Brazil, and if so, why she had chosen to study in Australia. Her response was that she had originally come to Australia to study English because it was important if she was to progress in her work, and because she would not be able to reach any degree of fluency in English with such courses as were available in Brazil. She now proposes to undertake courses in accounting. Her evidence, which the Tribunal accepts, is that she could only study accounting in Brazil if she were prepared to return to University and undertake a fresh degree, whereas in Australia she can follow shorter, more practically focussed courses. Given that her stated longer-term aim is not to practice accountancy, but to use those qualifications together with her English language skills and engineering expertise to rise in her work as an engineer, the Tribunal finds that this is a reasonable motive for choosing to study in Australia rather than Brazil.
Taking these matters together, the Tribunal finds that the applicant has cogent reasons for choosing to study in Australia, significant incentives to return to Brazil at the end of her studies, and that there is no indication in the evidence of any significant incentive she might have to avoid returning there. For these reasons, the applicant’s circumstances in her home country support her claim to be a genuine temporary entrant.
The applicant’s potential circumstances in Australia
The applicant’s evidence is that she has no family, community involvements, or assets in Australia. The Tribunal notes in that respect the applicant’s evidence that she first came to Australia with her partner, who studied here on his own student visa, but that they separated in 2019. The Tribunal accepts this evidence.
The applicant also gave evidence of a history of employment in Australia. Since arriving in this country she has worked in a number of restaurants and cafes, either as a waitress or as a barista. She has earned between AUD15,000 and AUD23,000 per annum in those positions. Given the applicant’s professional qualifications and aspirations, the Tribunal does not consider that the prospect of continuing in such employment is likely to provide her with any incentive to remain in this country after she has finished her studies.
There is no evidence that the applicant has entered into any relationship of concern, in the sense of a relationship contrived or calculated to obtain a better visa application outcome than might otherwise be available. The applicant gave evidence at hearing that she is currently in a relationship, but that this relationship is with an international student who is residing in Australia on a temporary student visa and who has almost finished his studies. This is not, in the Tribunal’s mind, a relationship of concern, as the other party to it is also in Australia temporarily and must before long leave the country.
Whatever else might be inferred from the other evidence discussed in these reasons, there is no direct evidence suggesting that the applicant is using the student visa programme to circumvent the intentions of the Australian migration programme, or is seeking a student visa to maintain residence in Australia.
The applicant gave evidence at hearing of the research she had done before her initial arrival in Australia. She stated that she had done extensive online research before applying for her visa, and had chose the college she first enrolled in (Lexis English) that way. The Tribunal considers this reasonable, as the Department obviously did given that it granted her a student visa. Since then, the applicant has lived, studied, and worked in Australia for some 5 ½ years. Her practical experience has necessarily left her very well-informed regarding life and study in Australia. The Tribunal obtains no assistance from this factor.
Taking these matters together, the Tribunal is satisfied that there is nothing in the applicant’s potential circumstances in Australia (or indeed her current circumstances) that detracts from her claim to intend genuinely to return to her home country at the end of her studies. Indeed, these considerations support the applicant’s claim.
The value of the applicant’s courses to her future
The applicant is proposing to study courses at a lower level than the bachelor’s degree she already has. However, those courses are in a distinctly different, although potentially complementary, field. The applicant’s evidence at hearing was that those courses, along with the English language skills she has learned and will continue to polish by studying in Australia, will assist her to obtain employment or improve her employment prospects in her home country. She gave evidence, based on her experience in her old employment in Brazil and on information she has received from friends working in engineering in that country, that she can expect to earn the equivalent of AUD4,000 to AUD5,000 per month with her Australian qualifications, whereas without them and relying solely on her existing Brazilian qualifications she could expect to earn a starting salary equivalent to AUD500 to AUD600 per month (which, she stated, would be considered a good starting salary in Brazil).
The applicant’s primary objective is to return to her former company in Brazil and work her way into higher level positions than she would have been eligible without her Australian qualifications and English skills. To the extent that such positions are likely to require her to be conversant with financial matters and financial management, and to deal with English-speaking customers and business associates, her studies in Australia are directly relevant.
The applicant gave no evidence as to the salary she could expect to earn in Australia, should she stay here. Given that her engineering degree is her main qualification, and given that she would most likely be required to requalify to some extent at least if she were to work in engineering in Australia, the Tribunal is prepared to accept that she is likely to earn more on her return to Brazil than she will be able to earn in Australia, allowing for differences in the cost of living in each country.
The Tribunal finds that the applicant’s courses are of value to her future in her home country. This supports her claim to be a genuine temporary entrant.
The applicant’s immigration history
There is no evidence before the Tribunal suggesting that the applicant has made any application for an Australian visa (other than the application the subject of this review) that has not yet been determined. The applicant gave evidence at hearing that she has previously travelled to the United States of America and to Indonesia, as well as to Australia. The applicant gave evidence that she was not refused a visa, or entry, to those countries, and there is no evidence before the Tribunal to the contrary. The Tribunal accepts the applicant’s evidence on this point. Further, there is no evidence before the Tribunal suggesting of the applicant having failed to comply with the migration laws of those countries.

The applicant first arrived in Australia (as was stated above) as the holder of a Class TU sub-class 570 student visa. That visa was granted to her on 4 June 2015 and remained on foot until 7 December 2015. Towards the end of that period she would appear to have applied for a further student visa, and to have resided in Australia under a bridging visa between 4 December 2015 and 7 December 2015, on which date she was granted a further student visa (TU-572) valid until 15 November 2017. Both those substantive visas were issued subject to various mandatory conditions. The applicant’s PRISMS record shows that during the currency of those visas she was, apart from the English courses mentioned above, enrolled in a number of VET level courses in (generally speaking) the field of business studies. That PRISMS record also shows that a large number of those enrolments were cancelled. This information was put to the applicant at hearing pursuant to s.359AA. She chose to respond at hearing, and explained that these cancellations were the result of the school in which she was enrolled (Hands On Computer Training International Pty Ltd trading as Australian Institute of Commerce and Technology (AICT)) losing its registration as a training provider. As a result, she enrolled in an Advanced Diploma of Business at Keystone College of Business and Technology, which she did complete. Shortly after doing so, she applied for a further visa and was granted a bridging visa, itself subject to certain other conditions. The cancellations on the applicant’s PRISMS record raised the possibility that she had been in breach of some of the conditions on her substantive student visas because she was either not enrolled in a full time course of study or because (for that reason) she had ceased to meet the requirements for the holder of a TU-572 student visa. However, the Tribunal is satisfied that there were no such breaches. Whilst the public record confirms that AICT’s registration was indeed cancelled, the applicant’s enrolments there were valid enrolments, despite the fact that the college did not in the end deliver the courses in which the applicant enrolled.
The applicant then applied for a further student visa, but as a secondary applicant – her partner at the time was the primary applicant. That visa (a TU-500 student visa) was granted, and was valid from 15 January 2018 to 28 October 2018. She and her partner then applied for further student visas, also TU-500. Those visas were granted, and were valid from 15 December 2018 until March 2020. Both those visas were issued subject to certain mandatory conditions, and subject to one discretionary condition. With one exception, there is no evidence before the Tribunal of any breach of any of those conditions.
That exception arose in late 2019. At that point, the applicant’s relationship with her partner broke down. They ceased to be de facto spouses, and therefore ceased to be members of the same family unit. At that point, the applicant fell into breach of condition 8516, because she ceased to be “a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.” At that point, the applicant had already resumed her own studies. Her evidence at hearing, which is borne out by the documentary evidence before the Tribunal, is that she applied for her own student visa almost immediately in order to regularise her position. That visa application was refused, leading this review. The applicant has continued to study during the currency of this review, having completed her Certificate IV in Accounting and Bookkeeping and Diploma of Accounting, and having started her final course, an Advanced Diploma of Accounting. The Tribunal does not consider that this breach of condition weighs against a finding that the applicant is a genuine temporary entrant, given that it arose from matters that were beyond her control and given that she move quickly to address it.
The applicant has been resident in Australia for some 5 ¾ years, although she has made a number of trips to Brazil in that time. Given the applicant’s visa and study history, as set out above, the Tribunal does not consider that this length of stay indicates an intention to stay in Australia other than temporarily. Nor can it be said that the applicant has been onshore for some time without successfully completing a qualification. The courses she has undertaken, whilst relatively short, are not inexpensive – the CoEs in evidence before the Tribunal (which do not include any CoE issued by AICT, or any CoE in respect of the applicant’s initial English courses) show that the course fees payable for her courses tend to fall in the region of AUD5,000 to AUD8,000 per course. The Tribunal does not consider these to be inexpensive courses.
Overall, the Tribunal finds that the applicant’s immigration history supports her claim to intend to stay in Australia only temporarily, for the purpose of study.
Conclusion
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 acknowledged in the course of making her visa application that conditions would be placed on her visa, and in doing so undertook (at least implicitly) to observe those conditions. The applicant’s immigration history shows no evidence, except in the one case discussed above, of breaches of visa conditions. In that one case, the breach arose from circumstances beyond the applicant’s control and she took positive action to rectify the breach promptly.
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)).
No other relevant matter arises for consideration on the evidence before the Tribunal.
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.
David Thompson
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 1219

19 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Remedies