DHALIWAL (Migration)

DHALIWAL (Migration) [2023] AATA 1240 (20 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harjeet Singh DHALIWAL
REPRESENTATIVE:  Mr SHAHZAD LATIF (MARN: 1679161)
CASE NUMBER:  2116543
HOME AFFAIRS REFERENCE(S):          BCC2021/1173594
MEMBER:Michael Biviano
DATE:20 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 20 January 2023 at 4:45 pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 69 – study history – reasons for undertaking study in Australia – change in career path – lack of academic progress – economic conditions – decision under review affirmed
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 3 November 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 1 June 2021. At the time of application, Class TU contained 2 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) for the reason that he was not a genuine applicant for entry and stay because he did not intend to stay in Australia temporarily.
The applicant appeared before the Tribunal on 15 August 2022 and 9 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was assisted in relation to the review.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making the relevant facts of the individual case must be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant was a genuine applicant for entry and stay as a student.
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 29-year-old Indian National who first came to Australia on 2 April 2014 pursuant to a TU573 student visa for the purposes of undertaking a suite of courses which included a Diploma of Leadership leading to a Bachelor of Business at Queensland University of Technology.
The Decision Record of the Delegate of the Department of Home Affairs dated 3 November 2021, which was provided to the Tribunal by the applicant, confirms that he made the application for a student (Class TU Subclass 500) visa on 1 June 2021 (Decision Record).
The Decision Record confirmed that the applicant had applied for the student visa for the purposes of undertaking a Diploma of Project Management and an Advanced Diploma of Project Management. The Decision Record also confirmed that the applicant had arrived in Australia in 2014 on a student visa and that the applicant was currently on a WA-010 bridging visa and awaiting an outcome of this application.
The Decision Record also set out the reasons why the Department refused the applicant’s application for a student visa. On 21 June 2022, prior to the hearing, the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student visa information about the courses he was studying and information about his entry and stay in Australia in accordance with s 359(2) of the Act (Response).
In addition to the Response the applicant has filed the following documents in support of his application:
a.receipt from Skills Institute Australia confirming payment of $500 on 12 July 2022 and $800 on 12 July 2022;
b.Confirmation of Enrolment (COE) No. D2649955 for the applicant to study a Diploma of Project Management at Skills Institute Australia with a course start date of 6 June 2022 and a course end date of 5 May 2023, which was created on 16 June 2022; and
c.COE No. D264C095 for the applicant to study an Advanced Diploma of Advanced Program Management at Skills Institute Australia with a course start date of 5 June 2023 and a course end date of 31 May 2024, which was created on 16 June 2022.
The matter proceeded to hearing before the Tribunal on 15 August 2022 however due to gaps in the documentation submitted by the applicant about courses completed by the applicant, the Tribunal made directions for the applicant to provide further information and comments in writing by 22 August 2022 and in particular documentation about courses he had studied whilst in Australia. The applicant in response to that direction submitted a letter from Skills Institute Australia dated 16 August 2022 confirming the applicant’s enrolment in the Diploma of Project Management. The enrolment dates for that course were a start date of 6 June 2022 and a course end date of 5 May 2023, which accorded with the COE. The matter was rescheduled for a hearing to 9 December 2022.
The Tribunal has considered the documents submitted by the applicant to the Tribunal together with the evidence given at both hearings and the documentation that has been submitted to the Delegate.
Prior to coming to Australia the applicant had undertaken studies back in India and had completed a Diploma in Business Management in 2012 after which he undertook employment as a sales co-ordinator at Star Radio & Watch to September 2013 in which his earnings were approximately A$1,775 per annum. He claimed in evidence that he then applied for an Australian visa but retained a casual job working as a labourer in a factory where he was earning approximately 7,000 Indian rupees per calendar month which equates to just under A$200 per calendar month but that the role was a casual role and that the level of income was inconsistent. Ultimately he arrived in Australia in April 2014 and as at the date of this decision he has been in this country for 8 years and 9 months which is a very long period of time.
During that time the applicant in the Response confirmed that in addition to his initial student visa he had obtained a student visa in June 2018 which ceased in July 2021. The applicant in evidence confirmed that his initial student visa ran from 2014 to 2017 and that he obtained a temporary graduate 485 visa at around 2016 to August 2017. The applicant in evidence confirmed that he had commenced undertaking the Diploma of Leadership with a view of undertaking a Bachelor of Business at QUT however he claimed that the education provider was not providing him with a course that he wanted to complete.
Consequently, the Response confirms that in August 2014 he enrolled at New England College to undertake a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology (Automotive Courses). The applicant submitted to the Delegate the qualifications letter of completion and academic transcript for those automotive courses which confirmed that the applicant had commenced studies in August 2014 and concluded them in September 2016.
The applicant in October 2016 enrolled in a Diploma of Leadership & Management at New England College which he completed in July 2017 and the applicant submitted to the Delegate a copy of the Diploma together with academic transcripts and letter of confirmation of completion of the course.
On the face of the Response and the applicant’s documents there appears to have been a substantive gap in his studies from July 2017 until he enrolled in the Diploma of Project Management in 2022 leaving a gap of some 5 years. However, the applicant gave evidence that he had enrolled in other courses.
The applicant did not provide documentation supporting those enrolments. Moreover, the applicant’s evidence was often confused and inconsistent about when he had studied particular courses. He initially claimed that in 2018 he had studied a Diploma of Telecommunications at the Australian College of Information Technology, he later then claimed that that course was studied between May 2019 and April 2020 and then claimed that he had taken that course between July 2017 and May 2019. However, those time frames continued to reveal that a gap existed in his studies.
The applicant also claimed that he had undertaken studies at Imagine Education in a Certificate III and Certificate IV in Commercial Cookery which he claims he did not complete.
The applicant then in evidence claimed that he had undertaken a temporary graduate visa where he worked for 18 months between 2016 and 2017 and then in May 2018 applied to undertake the Telecommunications course which was unsuccessful and then subsequently enrolled in commercial cookery courses in 2021 which he did not finish due to problems with his finances caused by the COVID-19 pandemic. The applicant claimed he had initially been enrolled in a Diploma of Telecommunications but then subsequently claimed that he was also enrolled in an Advanced Diploma of Telecommunications. Moreover, in the hearing in December 2022 he further claimed that he was enrolled in a Certificate IV in Telecommunications. The applicant’s failure to articulate his study history since completing the automotive courses and to provide documents in relation to his study history, has been unsatisfactory and has made it difficult for the Tribunal to fully understand the applicant’s study history here in Australia.
Having considered the applicant’s evidence the Tribunal accepts that the applicant was enrolled in a Certificate IV in Telecommunications together with a Diploma and Advanced Diploma to be undertaken at the Australian College of Information Technology. Based on the applicant’s evidence he was scheduled to study those telecommunication courses for a period of 3 years, which is likely to have been consistent with the grant of the second student visa which was to run from June 2018 to July 2021. The applicant claimed he studied in the course for 8 to 9 months but struggled in his studies due to a lack of understanding in the course and then lost the enrolment.
The Tribunal accepts that the applicant subsequently enrolled in a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery which was to be undertaken at Imagine Education. It appears from the applicant’s evidence that he stopped the studies in the telecommunication course in early 2019 and subsequently took up studies in the Certificate III and IV in Commercial Cookery in around August 2019 through to June 2020 when he lost his enrolment due to being unable to pay his fees and the course no longer being provided in person as the college had to shut down.
It appears that the applicant did not undertake any studies from July 2020 to June 2022. The applicant conceded in evidence that that was the case and claimed he did not do anything because he couldn’t support himself or his parents and he was unable to undertake any further work due to the COVID-19 pandemic. Whilst the Tribunal accepts that the COVID-19 pandemic would have had a disturbing and interrupting effect in regard to his studies the Tribunal does not accept it is an excuse for not undertaking any study over the course of the 2-year period especially in circumstances where the major restrictions imposed by reason of the pandemic have essentially been lifted since the commencement of 2022.
Furthermore, the applicant has had the opportunity to continue study during that time and did not provide any supporting evidence or documentary evidence about his failure to undertake studies for that 2-year period. The Tribunal notes that long gaps in study are inconsistent with the purpose of a grant of a student visa which enables students to come to this country and study in a timely manner and complete their course and return home.
Additionally the applicant has not completed any of the courses that he had enrolled in from July 2017, which is a period of 5½ years and notwithstanding that for a period of that time he was on temporary graduate visa, he failed to complete any courses that he has enrolled in over that period which suggests that the student is not progressing with their studies and is more consistent with someone using the student visa to reside here rather than to apply themselves and complete their studies in a timely manner.
The Tribunal is concerned that the applicant is using this visa application to extend his stay here in circumstances where he has already been here for 8 years and 9 months and his proposed course of study, being the Diploma and Advanced Diploma of Project Management at Skills Institute Australia, would extend his stay to at least May 2024 which is a stay of 10 years duration which is an extremely long period of time and inconsistent with the stay being temporary.
The applicant claims that if he obtains the qualifications of Project Manager he will be able to return back to India and work as a Project Manager or Operations Manager earning approximately 1,500,000 to 1,800,000 Indian rupees per annum which equates to a salary of A$26,000 to A$28,000 per annum. The applicant has provided some internet references confirming the availability of those jobs and the level of income that is available. While the Tribunal has reservations whether the applicant would be able to obtain such roles merely by obtaining qualifications without any experience the Tribunal accepts that by undertaking the project management courses it would improve on the qualifications that he has already obtained, which in turn would improve his employment prospects and level of remuneration.
The applicant in the GTE Statement to the Delegate set out the following reasons for wanting to undertake the Project Management courses:
• Your reasons for choosing to undertake the course of study specified in your application.
Project Management can ensure that organisations of all sizes reap the benefits of a well- controlled project-based approach to business. Project Management will help me to develop a full understanding of the project goals, objectives and benefits before committing significant resources. Project Management is in fact, shorthand for project, program and portfolio management. Companies these days prefer their employees to have Project Management course. As per my research majority of the firms admitted that the economic crisis underscored their project management shortcomings and forced them to do better. Project management is going to make my education complete in my stream. I will have all the required education for better career under one umbrella. “Good Project Management discipline stopped us from spending money on projects that fail” says Ron Kasabian, General Manager at Global IT Giant Intel, Folsom, California (USA)
The applicant was asked what project management courses were available in India and the applicant confirmed that he was unsure what courses he could complete in project management there. He confirmed that he had not undertaken any enquiries. Such failure to make enquiries about studying project management in India and merely enrolling in studies here is consistent with an applicant not wanting to evaluate his study options and an applicant who wishes to remain in this country.
He claimed in evidence that the reason he wanted to undertake the studies here in Australia was that candidates who obtain Australian qualifications would be able to obtain better roles and it would provide him with an edge in relation to obtaining employment. The applicant in evidence conceded though that the courses in India were cheaper but claimed to go to a good college back in India he would have to move away from his home town approximately 800km and in the circumstances he wished to complete his qualifications here in Australia. The Tribunal notes that the applicant has not made any enquiries about undertaking studies in India and what courses he could complete in project management back in his home country. Moreover, the lower cost of those courses would provide a significant incentive for the applicant to undertake studies back in his home country rather than to undertake them here. In those circumstances the Tribunal does not accept he has a reasonable motive to undertake these studies here in Australia.
The applicant has changed his career path initially from business to automotive studies to leadership and management to telecommunications to commercial cookery and now to project management. The courses studied are not connected to each other and do not lead to a particular position in employment. They are not complementary and do not lead to a career path. The applicant claims he has changed focus to undertake project management to get a more valuable job back in India. The difficulty with the applicant’s evidence is that he has been here for more than 8 years before making that decision and has had ample opportunity to undertake such studies if they were so important to his career path and to obtain a position back in India.

The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However, where an applicant decides to undertake studies for the purpose of extending their stay here inconsistent with the purpose of the visa then the Tribunal does not accept that the change in course is reasonable. Furthermore, the Tribunal does not accept that it is a reasonable change to career and study pathway for the applicant to decide to change courses through merely undertaking short vocational education training (VET) courses. The courses in which the applicant has enrolled in in Australia are all short VET courses and in essence do not reveal progression in his course of study. Whilst the applicant is enrolled in an Advanced Diploma of Project Management, the course that he is currently undertaking is a Diploma of Project Management. Whilst in Australia, he has already completed 2 certificates and 2 diplomas. Furthermore, the applicant has also completed a Diploma of Leadership and Management, and there will be some overlap in course content with the project management courses. In those circumstances the Tribunal does not accept that the Diploma of Project Management is consistent with his level of education and is not satisfied that the change in career pathway is reasonable.
Whilst the advanced diploma course if he studies that course and completes it, would be the highest qualification he would obtain, when considered in light of the time spent here, the lack of course progress and the time he has had in this country to complete the course if it was so important to his career, the Tribunal is not satisfied that the change in career pathway is reasonable.
The Tribunal notes that the applicant has during his course of studies completed 2 certificates and 2 diplomas over the past 8 years and 9 months. For a substantial part of the 8 years and 9 months he has been studying in this country but his failure to complete any qualification since 2017 is inconsistent with the purpose of the student visa in that the applicant has not applied himself and completed the courses that he has enrolled to complete. Rather his lack of academic progress is consistent with someone who intends to remain here on permanent basis.
The applicant has lived in Australia for the last 8 years and 9 months and he has a substantial degree of knowledge about living in Australia.
The applicant has been enrolled in the Diploma of Project Management since June 2022 and studied at Skills Institute Australia also for that period of time. By reason of the duration of studies in that course and at that education provider the Tribunal accepts that the applicant has a substantial degree of knowledge about the course and its provider.
The applicant has had various roles in employment whilst being in Australia. He claimed in evidence that from July 2017 to May 2018 he worked in an Indian restaurant as a kitchen hand. He was working 38 to 40 hours per week whilst here on a temporary graduate visa being paid A$16–$17 an hour earning between approximately A$600 and A$680 per week. That level of income equates to the applicant earning in excess of between A$30,000 and A$35,000 per annum which is a substantial level of income.
He claimed that he worked for a period of 2 years in a Tandoori Indian restaurant and when working on a full-time basis at that restaurant he was earning on average between A$900 and A$1,000 per week which is a very high level of income and would provide him with a substantial incentive to remain here rather than to return home.
The applicant gave evidence that between 2020 to 2021 during the COVID-19 pandemic he worked at Uber Eats and he was earning approximately A$400 to A$500 per week.
Since November 2021 the applicant has worked as a team member at the Tweed Indian Hut restaurant. The applicant claims his salary there is approximately $15,000 per annum and he claimed based on the level of income that he was only receiving a moderate amount. However, when pressed about the level of income he admitted that he had understated the level of income and he was earning A$24,388 per annum.
The applicant in evidence confirmed that the level of income here in Australia was substantially higher than in India. Such differential in the levels of income would provide the applicant with a substantial financial incentive to remain here rather than to return home. The Tribunal notes that the level of income that the applicant has received in various jobs that he has worked in here are higher than the level of income he would receive even based on completing his qualifications and returning back home to India.
The applicant gave evidence that the economic conditions here in Australia are more favourable than those in India. The Tribunal considers that as the conditions here are more favourable than those in India they would present a significant incentive for the applicant to remain here rather than to return home.
The applicant gave evidence that he has returned home to India only once during his stay in Australia for a period of approximately 2 months out of the 8 years and 9 months he has stayed in Australia. The applicant in the Response did not identify any other countries he has travelled to during that time. The Tribunal accepts that from March 2020 until the commencement of 2022 there were travel restrictions imposed which made it difficult for the applicant to return home. The Tribunal considers that as the applicant has made only one visit home in the 6 years that he was in Australia prior to March 2020 and that the total stay back home was for approximately 2 months, that the relatively short period of time he has spent back home is consistent with an applicant who is intending to remain here permanently and not return home.
The applicant in the Response stated that he had assets back in India comprising the family house and family agricultural land which are worth a total of approximately A$170,000. However, in evidence the applicant conceded that those assets were not in his name and not owned by him and were his family’s assets. In those circumstances the Tribunal considers that his asset position especially when considered alongside the level of income he can earn in this country present him with a significant incentive to remain here rather than to return home.
The applicant both in the Response and in evidence did not have any concerns about returning to India and he had no concerns about military service commitments or political or civil unrest in his home country. The Tribunal is satisfied they do not present as a significant incentive for him not to return home.
The applicant gave evidence that he has provided his family with some emotional support whilst in Australia but that his parents have provided him with financial support in the course of his studies here. The Tribunal finds that based on the applicant’s evidence and circumstances in his home country including his education and support from his family including their asset position that relative to others in that country he is in a good position and it would not provide a significant incentive for him not to return home.
The applicant in evidence confirmed he was not in a relationship of concern and there is nothing before the Tribunal to suggest that he is currently in a relationship. In those circumstances the Tribunal accepts that he is not in a relationship of concern for a successful visa outcome.
The applicant has personal ties both here in Australia and back home in India.
The applicant gave evidence that he has his mother, father and sister all in India. That would ordinarily provide him with some incentive to return home. However, he has not seen them in person since his visit back at the end of 2019. He claimed in the Response that he contacts them every second day by telephone or by other chatting apps. The applicant in the Response did not identify any other ties that he had to his home country. However, his ties to India must be considered in the context of his ties here to Australia which include that he has been here for a very long time, being 8 years and 9 months and intends to extend his stay to at least May 2024 being a further 17 months. Furthermore, when one considers the high levels of income he has been receiving and that he has been in stable employment, the Tribunal is not satisfied based on his circumstances in this country, that the personal ties he has to his home country will provide a significant incentive for him to return home.
The applicant has substantial ties here in Australia. He has a number of friends here and used to live with friends for a while but is currently living by himself. He also has been here for a long period of time, 8 years and 9 months, and intends extending his stay here for at least a further 17 months. The applicant gave evidence that he also attends temple but claims he is not part of the religious community. Ultimately the applicant has been in stable employment and accommodation whilst in Australia and earning a high level of income. The duration of stay coupled with those matters would provide the applicant with a substantial incentive to remain here by reason of those strong ties rather than to return home.
The applicant in his Response did not identify any other visa refusals or cancellations in Australia or elsewhere. There is nothing before the Tribunal from the Delegate’s Decision Record to indicate that the applicant has experienced any other visa refusals or any immigration issues either in or outside of Australia.
The applicant has been in this country for a very long period of time and has undertaken various courses of study. He has had ample opportunity to complete the courses he requires for the purposes of obtaining the qualifications to obtain employment back home. The fact he has not completed them to this date and that he continues to undertake short VET courses is consistent with an applicant seeking to circumvent the purpose of a student visa so that he can remain here on a permanent basis.
Based on the above matters, the Tribunal is not satisfied that the applicant has made this application to gain a student visa to study temporarily and that it considers the primary objective of the applicant is to maintain an ongoing residence in Australia with a view to remain here permanently.
On the basis of the above the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.
Accordingly, the applicant does not meet cl 500.212(a).
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.
Michael Biviano
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.

[2023] AATA 1240

20 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction