Dlima (Migration)

[2019] AATA 1455

Dlima (Migration) [2019] AATA 1455 (26 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Cimmaron Amanda Dlima
Mr Denver Eustace
Master Aiden Joseph Eustace
Miss Brianna Mary Eustace

CASE NUMBER:  1714565

HOME AFFAIRS REFERENCE(S):           BCC2016/4187621

MEMBER:Peter Haag

DATE:26 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 26 April 2019 at 3:15pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not entitled to appear before the Tribunal – genuine temporary entrant – arrived in Australia on tourist visa – applied for student visa 14 days after arrival – purpose of travel and stay – equivalent courses in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359C, 360, 363C
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 June 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 12 December 2016. 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.

3. 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 (the Regulations) because the delegate was not satisfied the applicant intends genuinely to stay in Australia temporarily.

4. On 9 January 2019 the Tribunal wrote to the applicants in this review hearing, pursuant to s.359(2) of the Act, inviting them to provide in writing, information about the course(s) of study the first named applicant is undertaking and her entry and stay in Australia as a student. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by 23 January 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information, and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. In response, the applicants indicated their consent to the Tribunal deciding the review without a hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicants are no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 intends genuinely to stay temporarily in Australia.

8. 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?

9. 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 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.

10. 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.

11. The applicant provided a copy of the record of the delegate’s decision to the Tribunal with this application. The applicant also provided a number of documents which appear in the Tribunal file. The applicant also provided documents to the Department and they form part of the Departmental file.

12. In reaching this decision the Tribunal has considered all documents contained in the Departmental file and the Tribunal file, including all documents provided by the applicant, or on behalf of the applicant, to either the Department or the Tribunal and which appear in either the Departmental file or the Tribunal file.

13. The fact that any particular document contained in the Departmental file or the Tribunal file is not specifically referred to in this decision, should not be treated as an indication the document was not considered by the Tribunal in reaching this decision.

14. The applicant and accompanying dependent applicants arrived in Australia on 25 November 2016 holding FA600 Visitor visas. According to the decision of the delegate, the FA600 Visitor visa was granted to enable the applicant and the dependent applicants, to enter Australia for the purpose of engaging in tourist activities, including a family visit. The intended length of that visit was two months.

15. A tourist while present in Australia may lawfully change the intended purpose of their stay from tourism, to undertaking an approved course of study. Nevertheless, a tourist applying for a Student visa must, at the time of the decision, intend genuinely to stay temporarily in Australia.

16. The applicant’s spouse entered Australia with the applicant and is included in this review application. The applicant’s son (a dependent applicant in the review) born on 29 May 2013 in India, arrived in Australia with both the applicant and his father, the applicant’s husband.

17. The applicant’s second child, Brianna Mary Eustace (a dependent applicant in this review) was born in Melbourne on 13 May 2017; she is almost two years of age.

18. Information provided to the Tribunal by the applicant’s migration agent indicates the birth in Melbourne of the applicant’s third child will occur soon: email dated 27 February 2019, Tribunal file, folio 127.

19. The applicant claims she and her husband were securely employed in India when they initially arrived in Australia. According to the evidence, members of the applicant’s extended family, including her parents and brother reside in India. And, according to the statement of purpose the applicant submitted to the Department (statement of purpose) the applicant’s father is a successful business owner in India; also the applicant’s family hold property interests and investments in India. When the applicant was living in India she was linked to her friends through Church, community functions and social events.

20. The applicant’s statement of purpose also indicates that both the applicant and her husband have a close and extensive network of family members who live in Melbourne and elsewhere in Australia. For instance, on the husband’s side of the family, two of his sisters are Australian citizens and they live with their immediate families in Melbourne.

21. On the applicant’s side of the family two of her aunties and one uncle reside in Melbourne with members of their immediate families. They are Australian citizens who own multiple properties in Australia; they are employed, and they hold business interests in Australia. According to the applicant, her relatives are providing housing and financial support to the applicant and her family, and they will continue to do so for so long as the applicant wants that support.

22. According to the evidence, the applicant and her husband have established strong personal relationships in Australia. This network of non-family relationships was formed through her son’s child care and kindergarten activities, participation in local Church and community events, educational institutions in which the applicant was enrolled, workplace-related friendships, and friendships developed with her husband’s workplace colleagues.

23. The applicant’s statement of purpose indicates she and her husband have family and friends in Sydney and Perth, and she is on visiting terms with all of them.

24. According to the evidence, after initially arriving in Australia, the applicant and her husband visited family and friends and various tourist sites; however, the applicant experienced a change of mind during this round of tourist activities. The applicant states in her statement of purpose: “I began to think about my future and how best I can maximise this opportunity to not only contribute to the Australian economy but also my personal growth and my family’s future, and for the following reasons decided to pursue academic and educational opportunities in Melbourne.”

25. The applicant initially arrived in Australia on Friday, 25 November 2016; by Friday, 9 December 2016, 14 days after arriving in Australia, the applicant managed to do everything necessary to research the merits of studying accountancy in Australia compared to studying equivalent courses available to her in India, and enrol in the Master of Professional Accounting at Holmes Institute.[1] According to the CoE, the start date of this course was 13 March 2017 and the end date was 31 July 2018. On 12 December 2016, the Monday following the applicant’s enrolment on Friday 9 December, the applicant managed to prepare and lodge this application for a Student visa with the Department, including committing to payment of the tuition fees.

    [1] Confirmation of Enrolment (CoE), Departmental file, folio 38

26. The total fee for the Master of Professional Accounting is AU$23,100, including an initial ‘up-front’ tuition fee of AU$3,800.

27. The evidence establishes the applicant’s second child was born in Melbourne on 13 May 2017, approximately five months and three weeks after the applicant arrived in Australia, and approximately two months after the applicant commenced the Master of Professional Accounting. The applicant did not complete this course due to the birth of this child.

28. At the time the applicant enrolled in the Master of Professional Accounting she was undoubtedly aware her second child would be born approximately two months after she commenced the course.

29. The disruption to the applicant’s patterns of life in India, and the life of her husband and son in India, and the lives of the applicant’s relatives in both India and Australia, resulting from the decision to change the family’s planned short stay in Australia, into a decision to stay on in Australia, and to give birth to their second child in Australia instead of India, while undertaking the Master of Professional Accounting by course work, would undoubtedly have been substantial.

30. According to the evidence, when the applicant initially arrived in Australia, both the applicant and her husband intended to return to India to continue working in their “secure long-term jobs”.[2]

    [2] Statement of purpose, Departmental file, folio 69; applicant’s statutory declaration dated 23 January 2019, Tribunal file, folio 59

31. Further, the applicant claims her son enjoys a strong family and friendship network in India and he is “reliant on his fledgling school years” – a remark taken by the Tribunal to be a reference to reliance on school friendships.[3]

    [3] Statement of purpose, Departmental file, folio 65

32. The applicant, in the context of engaging in tourist activities with her husband, son and family, and within nine clear business days after arriving in Australia, conducted “extensive research and consulted widely, [and] reached the conclusion there are [a] few business institutes in Melbourne which provide the various disciplines [the applicant is] looking for in a comprehensive course. In addition to the academic modules, [the applicant claims she] was keen to associate with a provider who could successfully draw on my personality to provide me with the challenges, strategies and opportunities to grow my overall skills and latent talents. To this end I choose the Holmes Institute as my education provider for the prescribed course as it met the above criteria”.[4]

    [4] Statement of purpose, Departmental file, folio 67

33. By Friday 9 December 2016, the applicant was enrolled in the Master of Professional Accounting at Holmes Institute, 12 clear days after arriving in Australia.

34. In order for the applicant to perform the research, and make all the decisions, the financial and accommodation arrangements necessary for herself, her husband and son to extend their stay in Australia, and to give birth to their second child in Australia, and for her to enrol at Holmes Institute, and to apply for this Student visa, it is likely a considerable amount of forethought and planning was necessary. The Tribunal is satisfied it is more likely than not, the applicant’s decision to study in Australia (and to give birth to her second child in Australia) was planned and made before she arrived in Australia, not, as claimed by the applicant, shortly after the applicant and her family arrived in Australia.

35. On the available evidence, the Tribunal is satisfied it is unlikely the applicant would disrupt her pattern of life, the pattern of life of her husband and son, change the location of the birth of their child from India to Australia, obtain long-term accommodation in Australia for herself, her husband, son and newborn baby, and in effect, end her employment and her husband’s employment in India, and change the patterns of contact enjoyed by the applicant, her husband and son with family and friends in India, all in the space of 14 days after arrival in Australia as a tourist.

36. On the basis of the available evidence the Tribunal is satisfied the applicant was not a genuine tourist when she arrived in Australia; and that the applicant decided to apply for a Student visa in Australia before she arrived in Australia for a short stay on a Tourist visa.[5] The Tribunal finds the applicant’s application for a Student visa was made with a view to extending the stay in Australia of the applicant and her family, and is intended primarily for maintaining ongoing residence in Australia rather than for temporary entry into Australia to study.

    [5] According to the delegate’s decision (a copy of which was provided by the applicant to the Tribunal) the applicant stated on the incoming passenger card the intended length of stay was two months at folio 3

37. The applicant claims in her reasons for applying for the Student visa that:

    ·     she held a lifelong ambition to become a chartered accountant and to own and operate her own accountancy business in India;

    ·     a belief that her future lies in the world of accounting;

    ·     a current intention to operate and own her chartered accountancy practice in India;

    ·     the applicant is aware Melbourne is a centre of excellence for foreign students offering educational opportunities that will equip the applicant to succeed in her own accountancy practice;

    ·     the applicant has reservations about pursuing a similar accountancy course in India because they offer book-based learning with no exposure to the real world. The applicant’s reservation in pursuing an equivalent course in India is that such courses offer limited or no exposure to real-world experience: Department file, folio 66.

    ·     the course the applicant wishes to undertake in Melbourne will provide “real world challenges, strategies and exposure” necessary to be a well-qualified accountant. The Master of Professional Accounting at Holmes Institute will provide both academic knowledge and practical skills to the applicant.

38. According to the evidence, the applicant’s reasons for studying in Australia reflect comparative research undertaken by the applicant in which the applicant compared equivalent accountancy courses available in India to the Masters level accountancy course in which she enrolled at Holmes Institute. According to the applicant’s evidence, the critical point of difference between the course of study available at Holmes Institute and equivalent courses available in India, is the courses in India offer no exposure to “real world” experience. The Tribunal accepts that there may be significant differences between accounting courses in India and Australia, but the applicant did not provide any evidence to support her assertions in relation to these differences. Of concern to the Tribunal, the applicant did not refer to any particular units of study in the courses she has chosen in Australia, or mention any specific skills or knowledge that she would acquire in Australia that she could not acquire in India. This caused the Tribunal significant concern about the applicant’s understanding and knowledge of her courses in Australia, and the value of the applicant’s study in Australia to her future employment prospects in India or a third country.

39. Without verifiable supporting evidence, the Tribunal gives little weight to the applicant’s claims that equivalent courses of study in India offer only book-based learning with no real-world exposure. And the Tribunal is not satisfied the applicant decided to study accountancy at Holmes Institute instead of studying an equivalent course in India for the reasons relied on by the applicant in this application for a Student visa.

40. It is relevant to repeat here that by 9 December 2016, shortly after the applicant and her family arrived in Australia, the applicant enrolled in the Master of Professional Accounting course at Holmes Institute. That course was scheduled to start on 13 March 2017 and end on 31 July 2018. The applicant was unable to complete that course; instead, she deferred the course intending to return to it at a later time, because of the birth of her second child.[6]

    [6] Tribunal file, folios 60 and 82

41. According to the applicant’s current CoE, the applicant is again enrolled in the Master of Professional Accounting at Holmes Institute. The course start date is stated on the Certificate to be 25 March 2019 and the end date is 31 July 2019.

42. In 2017 the applicant was assessed in eight subjects in the Master of Professional Accounting; she was successful in five of those assessments. In 2018 the applicant was assessed in four subjects in that course and achieved two passes and two credits.[7]

    [7] Tribunal file, folio 62

1. In 2018 the applicant was assessed in four subjects in the Master of Business Administration at Holmes Institute. The applicant has provided no explanation for why she did not in 2018 resume the deferred Master of Professional Accounting course instead of studying the Master of Business Administration at that time. Failure by the applicant to resume her accountancy studies in 2018, instead studying subjects in a different course, is inconsistent with the priorities and study purpose reflected in the applicant’s reasons for applying for this Student visa namely, a lifelong ambition to become a professional accountant, and more recently, to operate and own a charted accountancy practice in India. This inconsistency reflects adversely on the applicant’s credibility generally and the reliability of her reasons for undertaking accountancy studies in Australia. These findings add to the Tribunal’s view that the applicant applied for a Student visa to maintain ongoing residence in Australia rather than to stay in Australia temporarily to study.

2. The Tribunal has given regard to the value of the applicant’s current course to the applicant’s future. The applicant provided substantially inconsistent statements about her future career plans in India.

3. In information the applicant provided to the Tribunal, the applicant said she intends to work in the family business “to control, add structure and related efficiencies to the company’s finances, system and processes.” (The applicant did not indicate the family business is an accountancy practice or the nature of that business.) The applicant’s intention to work in the family business (sometimes identified as her father’s business) is inconsistent with what the applicant claims is the decisive reason behind her decision to relocate herself, her husband and children to Australia namely, to qualify herself to operate her own charted accountancy practice in India. The applicant also indicates she has another employment plan, that is, she may seek employment in multinational organisations in India.

4. Having regard to the Tribunal’s doubts about the applicant’s credibility generally, and the various inconsistent claims the applicant has made about her future employment plans in India, the Tribunal is not satisfied the applicant’s claims about her future plans and her ability to earn about $120,000 in India with a Master of Professional Accounting and a Master of Business Administration obtained in Australia, are genuine employment plans and claims, or that the applicant genuinely intends to pursue the proposed employment plans in India or a third country. Accordingly, the Tribunal is not satisfied the proposed course of study will be relevant to or assist the applicant to obtain employment or improve her income or employment prospects in India or a third country because the Tribunal does not accept the applicant genuinely intends to apply the benefits of her study to pursuing employment or establishing her own accountancy practice in India or a third country.

5. In the absence of information before the Tribunal about the current status of the applicant’s job prospects with her last employer in India, the Tribunal considers the evidence concerning the applicant’s last employment role in India is of little relevance to the Tribunal’s assessment whether the applicant’s economic circumstances in India when considered alone, or relative to the applicant’s circumstances in Australia, would present as a significant incentive for the applicant not to return to India.

6. In the foregoing considerations the Tribunal has allowed for reasonable changes to career or study pathways. The Tribunal also notes the applicant’s current course is consistent with her current level of education.

7. The Tribunal accepts the applicant maintains regular contact with close family members in India.

8. In giving consideration to the applicant’s personal ties to India and also the applicant’s personal and family ties to Australia, the Tribunal is not satisfied the applicant’s personal ties to India would serve as a significant incentive to return to India.

9. The Tribunal is satisfied on the available evidence the applicant’s ties to Australia, including her family and community ties, would present as a strong incentive to the applicant to remain in Australia.

10. The Tribunal finds the applicant has a sound and realistic knowledge of living in Australia and she has demonstrated an ability to study, work part time and raise in Australia her child, born in India, and her child born in Australia, while developing and maintaining social connections and religious observances in Australia. The Tribunal is of the view that the applicant and her family are well settled in Australia and well connected to family, friends and work and income-earning opportunities in Australia. The Tribunal is not however satisfied the applicant is staying in Australia primarily for the purpose of completing the course of study.

11. There is no evidence before the Tribunal of the applicant having military service commitments in India that would present as a significant incentive for the applicant not to return to India.

12. There is no evidence before the Tribunal of the applicant being affected by any political and civil unrest in India that may have induced or motivated the applicant to apply for this visa as a means of obtaining entry to Australia for the purpose of remaining indefinitely.

13. In reaching its decision, the Tribunal has had regard to the evidence of the applicant’s circumstances in her home country relative to her potential circumstances in Australia and on balance the Tribunal is not satisfied the applicant’s personal ties to her home country, including her ties to family, community and her potential employment and business opportunities in India, would serve as a significant incentive to the applicant to return to India.

14. There is no evidence of the applicant making a prior application for an Australian visa, or a visa to any other country, or previous travels to Australia or any other country, or the applicant having an adverse migration finding against her in Australia or any other country, consequently the Tribunal makes no adverse finding against the applicant in this regard.

15. 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).

16. 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.

17. 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.

    Applications of Denver, Aiden and Brianna Eustace

18. As the Tribunal has found that the primary applicant does not meet the requirements of cl.500.212, this means the secondary applicants, Denver, Aiden and Brianna Eustace, do not satisfy the requirements of cl.500.311. The secondary criteria for dependent applicants require that the primary applicant must have satisfied the primary criteria for the grant of a Student visa because cl.500.311 requires, amongst other things, that the secondary applicants are a member of the family unit of a person who holds a Student visa.

    DECISION

19. The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

    Peter Haag
    Member

    
    

    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:

    c.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    d.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    e.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    f.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

    g.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

    at 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;

    i.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    ii.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

    iii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country

    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.