Dharminder Singh (Migration)

Dharminder Singh (Migration) [2022] AATA 1795 (25 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Dharminder Singh
Ms Ramneek Kaur
Ms Jacklin Kaur Dhillon
REPRESENTATIVE:  Mr Kym Handberg (MARN: 0214353)
CASE NUMBER:  1932111
HOME AFFAIRS REFERENCE(S):          BCC2019/4419208
MEMBER:Peter Booth
DATE:25 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 25 May 2022 at 10:35am
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–– applicant failed to provide the information within the prescribed period – applicant was not a genuine applicant for entry and stay as a student – proposed courses have minimal relevance to future work – use the student migration program to maintain ongoing residence –applicant’s current study plan is inconsistent with the applicant’s employment history – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363, 499
Migration Regulations 1994, 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 25 October 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 4 September 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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) because the applicant was not a genuine temporary entrant.
The applicants were assisted in relation to the review.
On 15 July 2021 the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide information about the application for review in writing. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by the prescribed period, being 29 July 2021 or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant did not provide the information within the prescribed period. On 23 August 2021 the Tribunal received several emails and documents from Mr Andy Arora of “ehelp consultants”. In one of those emails Mr Arora referred to an earlier request for an extension of time in which to provide documents. By email dated 23 August 2021 the Tribunal wrote to Ms Lu of “ehelp consultants” who was the authorised representative of the applicant and informed her that there was no evidence of a request for an extension of time to provide information. On 23 August 2021 Mr Arora again wrote to the Tribunal and provided some further details of the request for an extension of time. A copy of the email containing the request was not provided. On 24 August 2021 the Tribunal wrote to Ms Lu and enquired if she was still the authorised representative of the applicant. There was no reply. In these circumstances, s 359C applies and pursuant to s 360(3) the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal turns to consider the available material.
The applicant had provided information to the Tribunal in the form of a response to a request to do so pursuant to s 359(2). In summary the information provided by the applicant was as follows.
The applicant completed a Bachelor of Computer Applications in India in 2009 and then a “higher national certificate in accounting” in Scotland in August 2012. He stated that he was employed as a “manager” at “global education and migration services” between November 2013 and September 2019 from which he derived an annual salary of “Rs 30,000”.
The applicant stated that he arrived in Australia on 7 October 2014 and since that time has returned to India on three occasions, namely in October 2013 for one year, in February 2018 for two weeks and in November 2018 for one week. However this information from the applicant is not accurate as movement records subsequently disclosed and which are discussed below.
He also stated that he visited the United Kingdom in July 2007 for 33 months for the purposes of study and again in September 2020 for 19 months, again for the purposes of study. This is not accurate as movement records subsequently disclosed and which are discussed below.
The application for the student visa in question was made on 4 September 2019.
The applicant stated his visa history in Australia to be as follows: he held a “457” visa granted on September 2017. He provided no further visa history.
The applicant stated his study history in Australia to be as follows: he is currently studying an “MBA” which commenced in November 2019 and was expected to be completed in February 2022.
The applicant stated that he was employed as a “knife hand” between February 2015 and June 2017 from which he derived an annual salary of AU$40,800.
The applicant stated that his wife, daughter and sister reside in Australia and that his father and mother reside in India.
The applicant did not provide any information regarding ownership of assets in India.
As to his future employment plans the applicant stated:
Upon the course completion, I move back to India. As the only son I have an obligation to take over the family agriculture business. Graduating from Australia institution will be very high regard in my home country and I would like to use MBA qualification to not only advance the profit for the business, but also to create the sustainability and fairness for the farmers within local communities. It is paramount that I gain the permission from the Government to set up farmers market in India and that would be achievable by obtaining the accreditation from graduating from reputable education country such as UK and Australia. As mentioned, my main goals are to run the family business and setting up a farmers market as I am especially interested in building soft skills in relation of people, culture, diversity, risks and how to manage them, as I will need to gather people and becoming a leader not only for the family business, but also to represent as a leader for farmers in his community as well.
The applicant did not provide any information regarding his expected future remuneration.
The applicant also provided a variety of documents to the Tribunal. The Tribunal makes a number of observations in relation to those documents. A confirmation of enrolment in respect of a Master of Business Administration degree stated that the course was scheduled to commence on 6 November 2019 and be completed on 23 October 2021. Another confirmation of enrolment in respect of the same course stated that the course commenced on 10 November 2021 and was scheduled to be completed on 26 February 2022. No further confirmation of enrolment documents were provided. Accordingly there was no evidence that the applicant was enrolled after 26 February 2022.
Further information in respect of the applicant’s visa and study history in Australia was to be gleaned from the Department’s file. By letter dated 5 September 2019 the second applicant, Ms Ramneek Kaur, wrote to the Department requesting that her daughter, the third applicant in this proceeding, be issued with “a 485 visa or a BVA based on the subsequent visa application my partner made”. The letter goes on to recite relevant facts as follows. First Ms Kaur applied for a Subclass 485 visa on 9 August 2017 which was granted on 6 September 2017 for a period of two years. Her husband, the applicant to this proceeding, was a dependent on that visa. Secondly Ms Kaur’s daughter was born in Australia on 4 March 2019. Thirdly her husband, the applicant in this proceeding, applied for a student visa Subclass 500 on 4 September 2019, “along with myself [the applicant’s wife] and my daughter included in that application”. (This document is identified on the file as DOCID 6564691.) It therefore seems likely that the applicant was a dependent on his wife’s visas and that the first time he applied for a visa in his own name was on 4 September 2019. That is the visa which is the subject of these proceedings. The Department ICSE records obtained by the Tribunal confirm this.
The next relevant document to be found on the Department file is a document titled “genuine temporary entrant”. It is unsigned, undated and has no page or paragraph numbers. Relevantly the applicant states that he arrived in Australia with his wife “on a student subsequent entrant visa in 2014”, in 2017 he decided to study a Master of Business Administration but underwent some surgery in August 2017 and as a result after his wife’s pregnancy “decided to defer my studies”. He decided to return to study after the birth of his daughter, and after completing his studies he will return to India to run his family’s agriculture business and to establish a farmers’ market.
On 8 April 2022 the Tribunal accessed the applicant’s record on the Provider Registration and International Student Management System (PRISMS) register. The purpose of this search was to ascertain whether the applicant was enrolled in a registered course of study, as required by cl 500.211(a), because there was insufficient evidence currently before the Tribunal about this. The PRISMS search showed that the applicant did hold a current Confirmation of Enrolment (CoE) in a registered course of study and which is due to be completed on 17 June 2022.
On 12 April 2022 the Tribunal wrote to the applicant pursuant to s 359A of the Act, inviting the applicant to provide comments in writing on information that it considered would be part of the reason for affirming the decision under review. The particulars of the information were that the applicant’s PRISMS record showed the following:
The Department of Education, Skills, and Employment’s records show that after you enrolled in a Master of Business Administration with Kaplan Business School starting on 6 November 2019, with proposed end date on 23 October 2021:
·The Master of Business Administration study period was varied for first time on 31 July 2021 and the Confirmation of Enrolment (‘CoE’) was extended with the course study period from 10 November 2021 until 22 February 2022.
·The Master of Busines Administration study period was varied for the second time on 17 March 2022 and the CoE was extended with the course start date from 16 March 2022, being the course you are currently enrolled in and studying.
Further, the applicant was informed:
This information is relevant to the review because it indicates that you may not be a genuine applicant for entry and stay as a student and may be using the student visa program to prolong your stay in Australia and to circumvent the intention of the migration program.
On 5 May 2022 the applicant provided a statement of interim results in respect of the Master of Business Administration course. That statement showed that the applicant had completed several units but had failed one unit and withdrawn from another unit. The applicant also provided a statutory declaration dated 4 May 2022 in which he stated that he had commenced the Master of Business Administration course on 6 November 2019, on 31 July 2021 “due to the impacts of Covid” he had requested a reduction in course load which resulted in the completion date being extended, having failed one subject, on 17 March 2022 he sought a further extension to enable him to complete the course and that upon completion of that subject he will meet requirements for granting the degree. He also stated that he has been continuously undertaking the MBA course since 6 November 2019.
On 5 May 2022 the Tribunal accessed movement records held by the Department in respect of the applicant. Those records disclose that the applicant arrived in Australia on 7 October 2014 and has departed Australia on one occasion since that time, on 27 November 2018, returning on 5 December 2018. Further the applicant arrived as the holder of a Class TU 573 student visa valid until 15 March 2016, a second 573 visa was granted on 24 March 2016 valid until 6 September 2017, a 485 visa was granted on 6 September 2017 valid until 6 September 2019, and a Bridging visa A was granted on 4 September 2019.
Based upon the movement records and the second applicant’s letter to the Department dated 5 September 2019 it appears most likely that the applicant was a dependent on his wife’s student visa when he arrived in Australia and continued to be a dependent on his wife’s second student visa and then 485 visa. His wife’s 485 visa expired on 6 September 2019 and the applicant applied for a Subclass 500 student visa in his name as the primary visa holder on 4 September 2019.
On 6 May 2022 the Tribunal wrote to the applicant’s representative setting out information which may be adverse and also seeking further information. The letter is in the following terms:
The particulars of the information are:
·     The Department of Home Affairs’ records show that you:
oWere granted a TU-573 student visa on 26 September 2014 as a secondary applicant. The primary applicant was Ms Ramneek Kaur. The visa ceased on 15 March 2016.
oWere granted a second TU-573 student visa on 24 March 2016 as a secondary applicant. The primary applicant was Ms Ramneek Kaur. The visa ceased on 6 September 2017.
oWere granted a VC-485 temporary graduate visa on 6 September 2017 as a secondary applicant. The primary applicant was Ms Ramneek Kaur. The visa ceased on 6 September 2019
oApplied for a TU-500 visa on 4 September 2019 as the primary applicant. The secondary applicant is Ms Ramneek Kaur.
·     The Department of Home Affairs’ movement records show that you:
oArrived in Australia on 7 October 2014 and departed Australia on 27 November 2018.
oArrived in Australia on 5 December 2018 and remained onshore since.
This information is relevant to the review because it indicates that you may not be a genuine applicant for entry and stay as a student and may be using the student visa program to prolong your stay in Australia and to circumvent the intention of the migration program.
In particular, you had been a dependant visa holder of Ms Ramneek Kaur from 26 September 2014 till 6 September 2019 and only applied for a student visa holder as the primary visa holder on 4 September 2019. It is further noted that the latest student visa application was submitted 2 days before the VC-485 visa expired and Ms Ramneek Kaur is a secondary applicant.
Additionally, the Department’s movement records are inconsistent with your response to the Tribunal’s invitation to provide information dated 15 July 2021. Specifically, in your response you stated that you were in India in February 2018 for two weeks and in the United Kingdom in September 2020 for 19 months. However, the Department’s movement records show that you were in Australia during the relevant periods.
If we rely on this information in making our decision, we may find that you are not a genuine applicant for entry and stay as a student and therefore you do not meet cl 500.212(a) which is a primary criteria for the grant of a student visa. This may be the reason, or part of the reasons, for the Tribunal affirming the decision not to grant you a student visa.
You are invited to give comments on or respond to the above information in writing.
Invitation to provide information
You are also invited to provide the following information in writing:
·     details of all the courses completed by the second applicant (Ms Ramneek Kaur) in Australia.
·     details of the second applicant’s (Ms Ramneek Kaur) education qualifications and work experience prior to arriving in Australia.
·     details of the second applicant's (Ms Ramneek Kaur) employment history in Australia including her current employment and income.
The applicant was invited to respond by 20 May 2022. The applicant did not respond to the letter dated 6 May 2022 within the allowed time.
On 24 May 2022, the applicant submitted a further statement and timeline in relation to the Tribunal’s invitation to comment on or respond to information and to provide information. The applicant’s statement is unsigned, undated and has no page or paragraph numbers. Both documents have been taken into account and given appropriate weight. The Tribunal makes several observations as follows. First, the applicant agreed that he has been a dependant visa holder of his wife from 26 September 2014 till 6 September 2019 and only applied for a student visa as the primary visa holder on 4 September 2019. He also confirmed that he is currently working as a restaurant manager and has been working there since 15 December 2014. Secondly, the reasons the applicant gave regarding his study and visa history were that he “wanted to support my wife completely in every way and wanted her to concentrate on studies only as it is very difficult to manage things both at home and outside while studying”, that he “underwent surgery for my right thumb fracture in 2017 which required me to attend hand therapy for rehab until November 2017”, and that he “wanted to support my wife emotionally and mentally both” during his wife’s pregnancy. He stated that a medical certificate in respect of his injury was attached to the document. The Tribunal did not receive any such medical report in regard to the applicant’s right thumb fracture. Lastly, the applicant conceded that the response he provided to the Tribunal’s invitation to provide information dated 15 July 2021 stating that he was in the United Kingdom in September 2020 for 19 months was incorrect. The applicant did not provide a reason for making the discrepancy in his statement.
CONCLUSIONS

The evidence available to the Tribunal can be summarised as follows.
The applicant completed a Bachelor of Computer Applications in India in 2009 and then a “higher national certificate in accounting” in Scotland in August 2012. He arrived in Australia on 7 October 2014 together with his wife, the second applicant. In information provided to the Tribunal the applicant stated that he has returned to India on three occasions since arriving in Australia. That is not accurate as movement records disclose that he has only departed Australia on one occasion on 27 November 2018 for approximately seven days returning on 5 December 2018.
Movement records also disclose that the applicant arrived as the holder of a Class TU 573 student visa valid until 15 March 2016, a second 573 visa was granted on 24 March 2016 valid until 6 September 2017, a 485 visa was granted on 6 September 2017 valid until 6 September 2019, and a Bridging visa A was granted on 4 September 2019. As discussed above the second applicant was the primary visa holder of each Subclass 573 visa and the 485 visa. The applicant was a dependent on those visas. The first time in which the applicant applied for a visa as the primary visa holder was when he applied for the Subclass 500 student visa on 4 September 2019. That is the visa application which is the subject of these proceedings. The Tribunal notes that the applicant did not hold a student visa or Subclass 485 visa as the primary visa holder and the first time he applied for a visa as the primary visa holder was when he did so two days prior to the expiry of his wife’s Subclass 485 visa. The Tribunal also notes that the applicant asserted that he suffered injury to his hand which required surgery in August 2017 and decided to defer his intention to study and to support his wife. He has not explained why he did not apply for a student visa until 4 September 2019, two years later.
The applicant stated that he was employed as a “manager” at “global education and migration services” between November 2013 and September 2019 from which he derived an annual salary of “Rs 30,000”.
The applicant and the second applicant were married on 27 November 2013. Their daughter, the third applicant, was born in Australia on 4 March 2019.
The applicant stated his study history in Australia to be as follows: he is currently studying an “MBA” which commenced in November 2019 and was expected to be completed in February 2022. His course has been extended several times at the applicant’s request. It was scheduled to be completed on 23 October 2021. He is currently enrolled in a registered course of study.
The applicant claims to be currently employed as a restaurant manager. His parents reside in India. The applicant’s wife and infant child reside in Australia. There is no evidence that the applicant owns assets in India. He has stated an intention to return to India and conduct his family’s agricultural business and also to commence a farmers’ market. No details of either venture have been provided.
The applicant has not explained to the Tribunal’s satisfaction why he did not apply for a student visa as the primary visa holder until 4 September 2019, why he applied for the student visa in question two days prior to the expiry of the second applicant’s 485 visa, a clear and cogent career path, details of the career path, why his existing skills and experience are insufficient to enable him to embark on his vague career plans, why he has changed the direction of his study from his qualifications obtained prior to arriving in Australia, the relevance of or necessity of a Master of Business Administration in order to conduct an agricultural business and possibly a farmers’ market in India, and why his wife and daughter remain in Australia.
In considering whether the applicant has met the genuine temporary entrant criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.
The Tribunal has considered the applicant’s circumstances in his home country. The applicant is married and is from India. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. The Tribunal finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to India, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 7 October 2014 together with his wife, the second applicant, as a holder of a dependent student visa. Thereafter the applicant remained in Australia as the holder of a visa dependent upon his wife’s visa status. His wife has been granted two Subclass 573 student visas and then a Subclass 485 visa. The applicant applied for a Subclass 500 student visa as the primary visa holder on 4 September 2019, two days prior to the expiry of his wife’s 485 visa. The proposed study would extend the applicant’s stay until at least June 2022. The Tribunal considers that the length of the proposed stay together with his status as a dependent visa holder for nearly five years prior to applying for his own student visa suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme.
The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. First the applicant has given extremely vague evidence about his future career path. Secondly he has not explained why his existing skills and experience are insufficient to enable him to embark on this vague career plan. Thirdly he has not explained to the Tribunal’s satisfaction why a Master of Business Administration is required in order to run a family agricultural business and possibly a farmers’ market in India.
The Tribunal observes that the applicant’s current study plan is inconsistent with the applicant’s employment history
and qualifications obtained in India and is inconsistent with his plans when he entered Australia. The applicant now wishes to pursue a Master of Business Administration in Australia. The course is asserted to have relevance to very vague future plans.
On balance, the Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has extensive qualifications and experience. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.
The Tribunal turns to consider whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.
The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between India and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to India.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 7 October 2014 the applicant has spent approximately seven and a half years in Australia and returned to India on one occasion, in November 2018 for seven days, his wife and infant daughter reside in Australia, his sister resides in Australia, there is no evidence that he owns assets in India, all of which indicates that he does not appear to have strong personal ties to India. On balance, the Tribunal assesses the applicant’s incentive to return to India to be minimal.
The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. As discussed above the applicant has resided in Australia since October 2014 as a dependent of his wife as the primary visa holder. The second applicant had two consecutive Subclass 573 visas and then a Subclass 485 visa. The applicant applied for the Subclass 500 visa in his own name two days prior to the expiry of his wife’s Subclass 485 visa. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.
The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.
There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India relative to others in that country.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
The application of the primary applicant having been unsuccessful, it follows those of the remaining applicants must also fail.
DECISION
The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.
Peter Booth
Member

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

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
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 1795

25 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal