Damanpreet Singh (Migration)

Damanpreet Singh (Migration) [2022] AATA 2272 (18 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Damanpreet Singh Damanpreet Singh
REPRESENTATIVE:  Mr Tonnou Thothan
CASE NUMBER:  2111791
HOME AFFAIRS REFERENCE(S):          BCC2020/1476948
MEMBER:Mark Bishop
DATE:18 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 18 May 2022 at 11:24am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – visa, study and work history – successful completion of multiple similar courses and two periods of non-enrolment – value of course to applicant’s future – incentives to remain or return – work in different industry than study – limited community ties – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359AA, 375A
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 16 August 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 3 May 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The applicant appeared before the Tribunal on 17 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was assisted in relation to the review by his Migration Agent (MA).
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 GTE.
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.
In his Application for a Student Visa dated 3 May 2020 the applicant advised he held a COE in a Diploma of Leadership & Management numbered B4516812. He advised an accompanying member of his family unit in this visa application was his wife Ms Khushi Khanna. He attached copies of national ID cards for himself and his wife, marriage certificate, certificate of OSHC for his wife, PTE academic test results and a COE.
The applicant is a married Indian citizen born 18 July 1996. He married Ms Khushi Khanna on 10 November 2019 (see Marriage card Doc ID number 8827104). On 3 May 2020 Ms Khushi Khanna lodged an Application for a Student Visa. On 11 August 2021 Ms Khushi Khanna withdrew this Application for a Student Visa (see Doc ID number 8827111)
The applicant provided a Statement of Purpose to the Tribunal dated 15 November 2021. It outlined the following:
·Australia has a multicultural and peaceful environment, the ESOS (Education Services for Overseas Students) Act that protects the rights of international students and the Tuition Protection System which protects the fees paid by the student if any college or university is unable to teach the offered course. The applicant did \not provide such provisions in like countries.
·His education provider, Skilled Up College is known for having a great atmosphere with a lot of social activities and events for the students and the multi-cultural environment will never let me feel he is alone. He advised Skilled Up College provides a national training package qualification developed by skills service organizations in consultation with industry bodies, regulators, training providers, and other stakeholders.
·He understand the terms and conditions and limits to this visa subclass 500.
·He advised after completing his course, he would go back to India and start a new hospitality business but initially will learn the local market and culture by working in a good hotel or restaurant. His intention is not to get a employment for long term but to start his own venture in India. India’s population is very big and therefore the demand of hospitality industry is very high. He ha studied Commercial Cookery at Certificate level.
·He has shifted his focus from Business to Leadership to Hospitality Management during his time in Australia.
The applicant provided a written response to a s 359(2) Request for Information. It outlined the following:
·He completed secondary school in July 2014.
·He did not provide any detail as to work experience in his home country prior to coming to Australia.
·He visited home for brief periods in January 2018 and October 2019.
·He has held three sequential temporary student visas since August 2017.
·He currently holds a COE in a Diploma of Hospitality Management.
·He completed a Certificate and Diploma in Business in 2016.
·He completed a Certificate III in Commercial Cookery in June 2018 after 18 months of study.
·He completed a Diploma of Leadership and Management in the period February 2020 until February 2021.
·He summarise his reasons for studying at Skilled Up College as being the fact it offers practical and theoretical training.
·Similar courses are available in India but due to the value of Australian education he chose to study hospitality in Australia.
·He did not provide any detail relating to periods of non-enrolment.
·He did not provide any detail as to work experience in Australia.
·He outlined living expenses as approximately $800 per month.
·He last saw his parents, brother and wife in India in December 2019.
·He described himself as a socially active person in his local community in India.
·He did not provide any detail as to community tie sin Australia.
·He owns a motorcycle in Australia.
·He advised he would return to India, work in a local hotel, and then start his own business. He anticipates an income of AUD10,000 to AUD20,000 and notes living expenses are low in India.
·He provided a copy of a COE in a Diploma of Hospitality Management (COE number C1AC8836) created 10 February 2021 that expired on 10 January 2022
On 15 February 2022 the Tribunal wrote to the applicant in the following terms:
You are invited to provide the following information in writing:
·Receipts for payments for all course fees for courses enrolled in and completed prior to February 2022.
· Receipts for payments for all course fees for the 2022 and 2023 calendar years, or copies of course fee payment plan for the 2022 and 2023 calendar years if relevant.
·Copies of academic transcripts and Certificates of Graduation or Achievement for all courses enrolled in since arrival in Australia.
·Statement of attendance for all courses enrolled in Australia on the relevant education provider’s letter head.
·Copies of Certificates of Enrolment or other forms of proof of enrolment for all courses enrolled in post February 2022 in Australia.
In response the applicant provided copies of the following documents:
·Certificates of Graduation and academic transcripts for completion for courses in Business at Certificate and Diploma level, Commercial Cookery at Certificate level 111 and Leadership & Management at Diploma level.
·COE’s (expired) in a Certificate IV in Commercial Cookery and a Diploma in Hospitality Management.
·Letter of advice of full payment of fess in a Diploma in Leadership & Management.
·Copy of COE number B4516812 in a Diploma of Hospitality Management with expiry date of 7 February 2021 showing payment of $1,000 of tuition fees amounting to $6,500.
·Letter from education provider dated 1 March 2022 stating the applicant had paid all fess relating to enrolment in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management. The letter also advised the applicant had complete both courses of study.
·Letter of support on blank paper dated 3 March 2022 signed by a Director of an unnamed company a Mr Jaskaran Singh advising he had known the applicant for a long time and knew he wished to finish his course. The Director advised he supported the applicant for his education fees and living expenses.
·Commonwealth Bank statement dated 4 March 2022 in the names of Jaskaran Singh and Sandip Kaur showing a balance of $20,282.
·Copy of an updated COE numbered CD7AFF58 showing a period of enrolment from 7 March 2022 until 4 September 2022 with total course fee of $4,000 and payment of $700 described as ‘initial pre-paid tuition fee’
The course information summarised in paragraphs 14 to 16 above showed the applicant enrolled in and completed a series of vocational level courses in Business (January 2016 until December 2016 at AVETA College), Commercial Cookery (July 2017 until June 2018 at AVETA College) and Leadership & Management (February 2020 until February 2021 at North Melbourne College).
On the day prior to the hearing the applicant provided a letter from Skilled Up College dated 1 March 2022 that advised the applicant had completed courses in Commercial Cookery at Certificate IV level and a Diploma of Hospitality Management. This letter contained the website address of the college ( as did the relevant COE numbered C1AC8836.
The applicant also provided COE’s for a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management in the period February 2021 until January 2022 and a letter dated 1 March 2022 on the letterhead of Skilled Up Pty Ltd 59-61 Curzon St North Melbourne advising the applicant paid his fees and completed both courses.
The website for Skilled Up disclosed courses relating to Hospitality Management inclusive of Commercial Cookery.
The Tribunal provided adverse information to the applicant under s 359AA of the Act and followed the process outlined in the Act. The applicant advised he did not wish any extension of time.
The Tribunal asked the applicant to explain what he was doing in the following periods:
·    January 2017 until June 2017. The applicant advised he had initially enrolled in an Advanced Diploma of Business but his enrolment was cancelled by his education provider and he did not engage in any study in this period.
·    July 2018 until January 2020. The applicant advised in the period July 2018 until October 2019 he enrolled on multiple occasions in hospitality management courses and all his COE’s were cancelled by his education provider for reason on non-payment of tuition fees, student advises cessation of studies and non-commencement of studies. The applicant advised he returned to India in October 2019, was married in November 2019 and returned to Australia in January 2020.
·    February 2021 until January 2022. The applicant advised he enrolled in courses of study, completed those courses of study and graduated from the two courses of study relating to a Certificate in Commercial Cookery IV and a Diploma of Hospitality Management.
The Tribunal does not make any adverse findings against the applicant arising out of the matters addressed in paragraph 22 above.
The Departmental file contained a copy of a s375A Certificate. The Certificate was largely redacted. The Certificate contained little detail. The Certificate did not disclose any detail relevant to the current visa application. The Tribunal gave the Certificate no weight.
On the day prior to the hearing the applicant provided a letter from Skilled Up College dated 1 March 2022 that advised the applicant had completed courses in Commercial Cookery at Certificate IV level and a Diploma of Hospitality Management. This letter contained the website address of the college ( as did the relevant COE numbered C1AC8836.
On the day prior to the hearing the applicant provided further copies of documentation relating to his financial record, current enrolment in an Advanced Diploma of Hospitality Management at Australian National Academy of Education (ANAE) effective from 7 March 2022 and academic progress in Australia. The correspondence from ANAE provided the website of the education provider ( as did COE numbered CD7AFF58.
This website provided relevant detail as to SIT60316 Advanced Diploma of Hospitality Management with tuition fees of $25,000. Course duration was stated to be 120 weeks and subject units were identified as core (16) and elective (16). The units offered in this SIT60316 Advanced Diploma of Hospitality Management were almost identical to the units offered in the SIT50416 Diploma of Hospitality Management. In critical areas that went to issues of budget, finances, staffing, leadership, customer service practices and business plans the unit offerings and unit titles were almost identical. In evidence the applicant advised he had paid tuition fees of $4,000 or $500 per unit for 8 units. At date of hearing he had completed 3 of the units.
In addition the applicant also provided copies of his academic progress in prior iterations of study in Business, Leadership & Management, Commercial Cookery and Hospitality Management. This documentation included copies of Certificates of Graduation and academic transcripts showing units completed. The Tribunal examined all this material. The units studied over many years at vocational level in many courses showed a remarkable similarity as to the core aspects of running a business (budgets, finance, staffing, recruitment, business relationships, customer relationships, marketing, business growth, labour standards, regulatory requirements food preparation, conflict management etc).
In evidence to the Tribunal the applicant advised as follows: he first came to Australia in December 2015, had resided continuously in Australia since that time except for two short absences one involving his wedding, he was married in November 2019, his wife resides in India with his parents, his wife has not visited Australia, he does not have children as yet, he last saw his wife and parents in India at the time of his marriage, he does not have any siblings in India, he shares/rents a room with his brother in Melbourne, he does not receive any remittances in any form from India, he does not have any commercial interests any companies or businesses in India, his parents and wife are both government workers and receive a small income from land they own, he works in Australia for a trucking company as a subcontractor/driver and grosses approximately $5,000 per month, he did not study in India and did not consider enrolling in his current course in India because he thought the standards were better in Australia and he wished to finish his education in Australia, he has spent all his adult life in Australia, his community ties in India are his wife and family and school friends from high school, he plans to open a restaurant in India at the conclusion of his studies in Australia, he attends Sikk temple in Melbourne twice per week, assists in the service of food in the temple, participates in Sikk community outreach activity to those in need, attends social and cultural days and events in the Sikk temple, worked briefly in two Indian restaurants without pay as part of placement work attached to his Commercial Cookery courses, has not otherwise worked in hospitality or cooking in his time in Australia, could not remember any of the names of units studies in his Hospitality Management and Commercial Cookery courses, pursued his study at Skilled Up on an online basis, does not remit any funds to his parents or wife and wishes to complete his current Advanced Diploma because he wants to fully qualify.
At the conclusion of the hearing the MA for the applicant addressed 3 points by advising there had not been a breach of Condition 8202, the existence of multiple COE’s in particular periods was cause by long processing times and the applicant would return home in September 2022. The Tribunal does not make an adverse finding against the applicant in respect of Condition 8202
The Tribunal turns to consider Ministerial Direction number 69 (MD69).
Applicant’s Circumstances in the Home Country
The applicant completed high school in India. He has spent all his adult life in Australia. He has completed numerous courses of study in Australia. For full detail see paragraphs 14, 16 17, 18 above and paragraphs following. He returned to India on two occasions after 2015 and not since 2019 when he was married. He does not have any commercial or business interests in India. He does not have any assets in India. His parents reside in India and he shares a room with his brother in Melbourne. He has not seen his wife since his marriage. His ties to India are his parents and wife and possibly high school friends from prior to 2015. As per her s.359(2) written response he has few ties to community based organisations in India. This is not surprising as her visits to India have been brief and for the purpose of seeing parents and getting married.

The applicant’s ties to his home country are limited. His physical engagement (visits) with his home country since 2015 has been minimal. He has little family outside of his parents and wife whom he has not seen since his marriage in 2019. He has no business, commercial or economic interests in that country. His possible employment interests in India extend to opening his own restaurant. He works in Australia as a driver/subcontractor in the trucking industry. He enjoys a solid income from work in Australia of approximately $5,000 gross per month.
The Tribunal is of the view the economic circumstances of the applicant present as a significant incentive to not return to his home country.
The Tribunal notes that the applicant has personal ties to his home country in the form of his parents and spouse. However, the Tribunal finds that these ties do not, constitute a strong incentive to return home at the completion of the proposed study. When considering the applicants circumstances in the home country on balance the Tribunal is of the view that the applicant has not been able to demonstrate strong enough ties to outweigh a significant incentive for the applicant not to return to his home country.
The Tribunal does not make any adverse findings concerning military service commitments. The Tribunal does not make any adverse findings concerning cl. 9(e) of Ministerial Direction number 69 (MD69). There was little evidence concerning cl. 10 of MD69.
Applicant’s circumstances in Australia
The applicant has lived, worked, studied and participated in the community life of Australia for many years from 2015 until the present time. He has grown from a young boy to a man in that time period of 7 years. He has been a continuing student since 2015 with largely successful academic results inclusive of bouts of non-study. He currently lives, studies and works in Melbourne. He shares a room with his brother in Melbourne. He is active in the Sikk community in Melbourne. He works in Melbourne and his employer provided a reference. The applicant works in the trucking industry. He has studied and achieved numerous Certificates of Graduation. He participates in the community of education through his exposure to education providers, lecturers and teachers and fellow students. His work gives income and purpose. He is highly regarded by his employer. The disciplines of regular work are part of community in that the applicant learns and applies the standards that are expected or working in a new country.
The Tribunal is of the view the applicant’s ties with Australia (employment, income, family, community and study) serve as a significant incentive to remain in Australia. The Tribunal is satisfied the applicant is using the student visa programme to circumvent the intentions of the migration program. The Tribunal is satisfied the applicant is using the application for a student visa to maintain ongoing residence. The Tribunal does not make any adverse findings as to cl. 11 (d) and (e) of MD69.
Value of the Course
Prior to coming to Australia the applicant completed his high school education in India. He has largely completed business or management courses in Australia. In addition he is now vocationally qualified as a chef having complete Certificates 111 and IV in Commercial Cookery. Since 2015 the applicant’s study record in Australia is one of repeated enrolments, mostly successful academic outcomes and the completion of numerous certificates and diplomas at vocational level. He has not progressed to the university sector. Whilst studying the applicant has worked in the trucking industry. Generally his record is a record of diligence. The applicant has industry experience, vocational training in his future career of hospitality or hospitality management, has enjoyed extensive exposure to the vocational sector in varying areas relating to Business, Management, Hospitality Management and Commercial Cooking and holds numerous sets of complementary qualifications Australia that will add value to his future endeavours of opening and operating his own restaurant. He advised the Tribunal he is now studying an Advanced Diploma in Hospitality Management and will complete this Advanced Diploma in September 2022 with a final 5 units..
The applicant advised the Tribunal as to his reasons for studying Hospitality Management at Advanced Diploma level as being a desire to complete his studies and have a full qualification. The applicant provided copies of his various academic transcripts in his many courses of study. Not only was he a diligent student but dealt with difficult fields of study in a mostly disciplined and successful manner. The applicants skills from employment, vocational experience in his various iterations of study in Business and Management, extensive exposure to financial concepts inherent in his studies relating to finance and budgets suggest the applicant is well qualified and well suited to opening his own restaurant business. The applicant has not declared any future job offers or evidence that his current course of study is required in order to further his career in India or in any part of the world. The applicant in evidence to the Tribunal made in quite clear his future career path in India now revolved around opening and managing his own restaurant. He advised the Tribunal he no longer wished to do any work for another employer prior to opening his own restaurant. The applicant is free to open a restaurant at any time in India (subject to the local laws and regulations of course). He does not need further qualifications at Advanced Diploma level. Already he has the intellect, the experience, the training, the vocational qualifications, the discipline of work practices and the expertise to set out about such endeavour.
The Tribunal notes the applicant completed a Diploma in Hospitality Management in early 2022. This course trains students in the skills necessary to run a successful hospitality business. At some length the applicant explained to the Tribunal his future career lay in opening his own restaurant. He gave a considered response as to why he thought such business would be successful. The Tribunal finds it difficult to understand how the applicant is not maximally qualified to now pursue his own stated carer interest.
For the reasons outlined in paragraphs 27 and 28 above the Tribunal finds there is only marginal value to be gained through completion of a current iteration of study in Hospitality Management as this course largely but not totally replicates concepts and skills previously studied in Australia in similar courses relating to Business, and Commercial Cookery.
The Tribunal finds the applicant has failed to articulate why his existing qualifications and experience in Australia are insufficient to allow him to achieve his career goal in India. As such, the Tribunal holds significant concerns the applicant has applied for a further Student visa for the primary purpose of securing an extension of his stay in Australia rather than due to a genuine interest in the subject matter of his studies and academic progression. The Tribunal is not satisfied that this course was selected to improve the applicant’s educational outcomes or further his career in the home country. The Tribunal is of the view that the applicant’s desire to live in Australia is motivated by the benefits associated with ongoing (possibly future) employment of himself rather than the better outcome from his soon to be completed studies in Hospitality Management and very little to do with the benefits to his future career goal.
The Tribunal notes the applicant gave evidence that he would not seek employment back in India but would immediately move to open his own restaurant. Notwithstanding this evidence the Tribunal is of the view the applicant is seeking to undertake a course that is consistent with his current level of education and will not assist him to obtain employment or improve his employment prospects in his home country. The Tribunal sees little relevance to the applicant’s past or proposed future employment either in India or a third country. There is insufficient evidence for the Tribunal to reach a conclusion concerning cl.12(c) of Ministerial Direction number 69 (MD69).
Migration
The applicant has been resident in Australia since 2015 as the holder of sequential temporary visas. The Tribunal finds the applicant has been lawfully resident in Australia since 2015 until time of decision as the holder of sequential student and bridging visas. The Tribunal finds the applicant has been enrolled in approved courses of study from 2015 until time of decision when required as the holder of student visas and at other times as the holder of appropriate visas. The Tribunal notes there were two lengthy periods of non-enrolment arising from cancellation of COE’s by relevant education providers. The Tribunal notes the applicant gave evidence to this effect. The Tribunal does not make any adverse findings against the applicant arising out of these separate periods of non-enrolment as the applicant addressed his problems and successfully resumed his studies.
The Tribunal finds the length of the applicant’s proposed stay in Australia to be entirely incompatible with the conclusion he is a genuine temporary entrant, which brings into question his intention to return to his home country and to apply knowledge and skills in India. Whilst the Tribunal acknowledges that there is insufficient evidence to demonstrate that the applicant has been compliant with the conditions of his visa in Australia (because of two periods on non-enrolment) or any other country, the Tribunal does not make a finding that the applicant is in breach of any condition attached to his visa. The Tribunal holds significant concerns that the applicant is more likely attempting to utilise the Student visa program as a means for maintaining ongoing residence in Australia and is not a genuine temporary entrant. The Tribunal is satisfied the applicant has undertaken a series of short, inexpensive courses. In respect of paragraph 14 (b)(iii) of MD69 the Tribunal notes the applicant has nearly completed an Advanced Diploma of Hospitality Management.
The Tribunal is of the view the applicant has spent a lengthy period of time in Australia, his prior temporary student visas and his current application for a further student visa is being used primarily for maintaining ongoing residence.
The Tribunal is of the view the applicant is proposing to extend his stay in Australia until at least September 2022 to undertake a course he has been unable to adequately demonstrate will be of value to his future. When considering the applicant’s immigration history together with the lack of sufficient explanation of value of this particular course, the Tribunal has concerns the applicant sought enrolment as an attempt to maintain his stay in Australia.
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.
Conclusion
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.
Mark Bishop
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;
d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2022] AATA 2272

18 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal