Dukpa (Migration)

Dukpa (Migration) [2020] AATA 1830 (12 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Dorji Dukpa
Mrs Kinley Dema
CASE NUMBER:  1725739
HOME AFFAIRS REFERENCE(S):          BCC2017/2672124
MEMBER:Frank Russo
DATE:12 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 12 March 2020 at 5:56pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant criterion not met – personal ties in Australia – family in Australia – completion of all of the courses – visa history – use the student migration program to maintain ongoing residence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 499
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.211, 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 Immigration and Border Protection on 6 October 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 27 July 2017. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant is a genuine applicant for entry and stay as a student.
The applicants appeared before the Tribunal on 25 June 2019 to give evidence and present arguments.
The applicant is a 54-year-old national of Bhutan. The secondary applicant is the applicant’s wife, a 53-year-old national of Bhutan. The applicant’s visa application was in respect of an enrolment in a Diploma of Leadership and Management, which the applicant had completed at the time of the hearing. At the time of the hearing the applicant was enrolled in an Advanced Diploma of Leadership and Management, which he was expecting to complete by 2 March 2020.
The applicants were assisted in relation to the review by their registered migration agent.
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 applicant for entry and stay as a student.
The Tribunal notes that at the time of the hearing the applicant was enrolled in the Advanced Diploma of Leadership and Management. Although this enrolment has now ended, the Tribunal gives its reasons for decision in relation to the whether the applicant meets the genuine temporary entrant criterion given the applicant was enrolled at the time of the hearing and continued to be enrolled until 2 March 2020. The Tribunal heard evidence regarding the applicant’s satisfaction of the genuine temporary entrant criterion and has made an assessment regarding this criterion.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
In addition to the application form, the applicant provided the Tribunal with a copy of the delegate’s decision and the following other documents (some documents were provided on more than one occasion):
a.Copies of the applicants’ Bhutanese passports;
b.Statutory declaration from the applicant, dated 7 April 2019;
c.A s.359(2) response from the applicant, received by the Tribunal on 20 April 2019;
d.Submission from the applicant’s agent, dated 20 April 2019;
e.Confirmation of enrolment (CoE) for the Advanced Diploma of Leadership and Management at Australian Capital College from 4 February 2019 to 2 March 2020;
f.Proof of enrolment letter issued by Australian Capital College on 2 April 2019 for enrolment in the Advanced Diploma of Leadership and Management;
g.Letter of completion from Australian Capital College, dated 6 March 2019, for the Diploma of Leadership and Management, together with copy of the Diploma issued on 24 February 2019 and transcript of results;
h.Undated business plan for egg production, headed ‘Semi-commercial poultry farming’;
i.Letter from National Land Commission, Bhutan, certifying the applicant’s ownership of land, dated 12 March 2019; and
j.Statement of the applicant’s daughter, Ms Kinley Zam, dated 20 March 2019 and copy of her passport.
The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.
The applicant gave evidence that he first arrived in Australia in 2015 on an Endeavour Scholarship provided by the Australian Government for the purpose of studying Business. He came to Australia with his wife and stated that he enrolled at Canberra Institute of Technology, where he completed an Advanced Diploma of Business. The purpose of the scholarship and his enrolment in these studies was to improve his skills so he could return to his professional work with the Ministry of Agriculture in Bhutan.
The applicant told the Tribunal that after he completed his studies in Business he intended to enrol in a Diploma of Leadership and Management, which he has now completed. The Diploma of Leadership and Management was the subject of the visa application currently under review. At the time of the hearing he was enrolled in an Advanced Diploma of Leadership and Management.
Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information, namely that the information may be the reason or part of the reason for affirming the Delegate’s decision. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments or wished to respond in relation to the information contained in his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.
The applicant indicated that he understood the information and wished to respond to the information contained in the PRISMS record at the hearing.
According to the applicant’s PRISMS record, he was enrolled in a package course for the award of the Certificate III and Certificate IV in Business and the Diploma and Advanced Diploma of Business from 20 July 2015 until 23 June 2017 and completed these qualifications by the original enrolment dates. The applicant was enrolled in a Diploma of Leadership and Management from 15 August 2017, which ended on 15 August 2019. He was enrolled in an Advanced Diploma of Leadership and Management from 4 February 2019, which was due to end on 2 March 2020. The applicant confirmed at the hearing that the information contained in this record is correct.
The Tribunal raised concern with the applicant that the course which was the subject of his visa application was the Diploma of Leadership and Management, which he has now completed, but rather than return to his home country, he has now enrolled in the Advanced Diploma of Leadership and Management, and asked his reasons for this.
The applicant stated by way of explanation that he worked hard to complete the Diploma of Leadership and Management as quickly as he could and he wanted to proceed to obtain the Advanced Diploma of Leadership and Management as well. He stated that the Advanced Diploma of Leadership and Management will further improve his skills. He stated that he intends to run for the 2023 elections in Bhutan and he is confident that he can apply the skills in Leadership and Management which he is learning through his course in his home country. He stated that the Advanced Diploma will help him get elected and will give him an advantage in sitting for the election. He stated that he also plans to set up a poultry business in Bhutan. He stated that he and his wife were 53 and 52, respectively, and they have no intention to remain in Australia as the age limit for applying for temporary residency is 45.
When questioned as to what content is covered in the Advanced Diploma of Leadership and Management, the applicant stated that he has learned different units and it is at a higher level, which gives him good skills. During the course of the hearing the applicant stated that he is getting a lot out of his studies in Leadership and Management.
When questioned whether he has any documentary evidence in support of his plans to run for election in Bhutan in 2023, he stated that there is no such evidence available as the election will not be happening until 2023. In his statutory declaration, dated 7 April 2019, the applicant stated that he intends to stand as a National Council Member for his area of Sarpang District. He states that he has a lot of following and is popular in his area, and that with a leadership qualification he will be more confident to use these skills.
When questioned about his plans regarding a poultry business, he stated that he plans to take up egg production and that further details are available in an executive summary which he provided to the Tribunal. When questioned as to how he will finance such a business, he stated that he has land and the majority of the cost will be covered by a government loan. He stated that he has already collected stones, gravel and timber which he will use for the infrastructure. In his statutory declaration the applicant states that the poultry business is also for sustenance and is a fall-back position.
The applicant gave evidence that prior to coming to Australia he worked for the Ministry of Agriculture in Bhutan for over 20 years (in his s.359(2) response he indicated that he worked there for 25 years) and that he has a Masters degree from the University of Reading in the United Kingdom. In his s.359(2) response the applicant indicated that he has a Diploma in Veterinary Science and Animal Husbandry from the Royal Institute of Animal Science, Bhutan, as well as a Postgraduate Diploma in Agriculture Management and a Master in Communication and Rural Development from the University of Reading.
The Tribunal has concerns regarding the value of the applicant’s courses in Leadership and Management to his future. As noted above, he claims that these courses will assist him in running for the 2023 elections in Bhutan. The applicant conceded at the hearing that he is unable to provide any evidence that he will stand for office during the next election in Bhutan, stating that the election is not until 2023. In any case the Tribunal has difficulties accepting that a vocational qualification in Leadership and Management is likely to be of value to the applicant in running for election over and above the existing qualifications that the applicant has, which include a Diploma from Bhutan, a Postgraduate Diploma and Masters degree from the UK and his Advanced Diploma in Business from Australia. While the applicant claimed at the hearing that the Advanced Diploma of Leadership and Management would assist him with political leadership, the Tribunal has had regard to the units of study for this qualification, which are set out in the transcript provided for the Diploma of Leadership and Management and the proof of enrolment letter from Australian Capital College dated 2 April 2019. The Tribunal finds that the focus of this qualification is on Leadership and Management within a workplace environment, not on political leadership. For example, the letter from Australian Capital College indicates that in April 2019 the applicant was enrolled in three subjects: Manage Finances, Develop and Implement a business plan and Manage Innovation and Continuous Improvement. While the management of finances could assist someone intending to run for politics, the other two units are focused on management and leadership within an employment/business context.
The applicant was also unable to provide anything other than general statements as to how the Advanced Diploma of Leadership and Management would assist him in addition to the skills and knowledge he had already gained from an Advanced Diploma in Business or from the Diploma of Leadership and Management, which was the subject of his visa application. He stated that in the Advanced Diploma of Leadership and Management he has learned different units and it is at a higher level than the Diploma, that his studies give him good skills and that he is getting a lot out of them. The Tribunal finds that the applicant was unable to provide any credible details of how his studies in the Advanced Diploma of Leadership and Management offer value to his future over and above his existing qualifications.
The applicant’s other claim as to the value of his course of study was that it would assist him with setting up a poultry business in Bhutan. The applicant gave evidence that he has land in Bhutan which he intends to use for this purpose and provided a copy of a letter from the National Land Commission of Bhutan to confirm his ownership of land. The Tribunal accepts that the applicant has land in Bhutan. The applicant also provided a copy of an undated executive summary for a business plan which is headed both ‘Semi-commercial poultry farming’ and ‘Business plan: egg production’.
The Tribunal notes that the business plan was prepared by the applicant and makes mention of his study of the Diploma of Leadership and Management, which the applicant states in the plan ‘will add an extra credit for successful management and operation of the planned poultry business.’ The Tribunal gives little weight to this document as supporting evidence of the applicant’s intended plans to start such a business, given the document was prepared by the applicant and uncritically promotes his studies in Leadership and Management without analysis of the applicant’s existing management and leadership skills or his skills from other qualifications and experience. There is little evidence to suggest that the applicant will need additional skills in leadership or management over and above his existing skills, qualifications and experience in order to run the proposed poultry business, particularly given the business plan describes the project as being ‘semi-commercial’ and will be run entirely by members of the applicant’s family, other than contractors being brought in as a back-up when needed. The Tribunal is of the view that the applicant’s studies in Leadership and Management are likely to provide only incremental value to the applicant in such a proposed business over and above his existing qualifications, which include an Advanced Diploma in Business, his Diploma and Veterinary Science and Animal Husbandry and his postgraduate qualifications from the UK. The Tribunal considers it more likely that the applicant enrolled in the Diploma of Leadership and Management to extend his stay in Australia, and after completing this course in February 2019, enrolled in the Advanced Diploma of Leadership and Management to further extend his stay in Australia.
Having considered the applicant’s educational background as a whole, the Tribunal does not consider the applicant’s enrolment in a second Advanced Diploma to be consistent with his existing level of education. The applicant completed the Advanced Diploma of Business in 2017, and then enrolled in a Diploma course for the purpose of his current visa application, and since completing that qualification has now proceeded to the Advanced Diploma. The Tribunal notes the applicant has postgraduate qualifications from the UK, and together with the Diploma of Business which he recently completed in Australia, considers his enrolment in a further Diploma and Advanced Diploma in a field related to his existing Business qualification would only add incremental value to his future employment or business prospects.
Although the Tribunal has considered the information the applicant has provided in the business plan regarding the profits that can be earned from the proposed poultry business, the Tribunal has given this business plan little weight, and overall the Tribunal considers there is insufficient information before it regarding the remuneration the applicant could expect to receive in his home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study and therefore makes no adverse findings regarding the consideration contained in cl.12(c) of Direction No.69.
As to why he has chosen to study in Australia rather than his home country, the applicant gave evidence that he obtained an Endeavour Scholarship from the Australian Government and that he came to Australia to study Business. He stated that he intends to participate in the 2023 elections in Bhutan and believes that a qualification in Leadership and Management will give him an advantage over other candidates. He stated that although the same qualifications are available in Bhutan, he believes the qualification he is obtaining in Australia will give him an advantage. Later in the hearing the applicant stated that courses in Leadership and Management are not available in Bhutan. In his s.359(2) statement the applicant states that he has a friend who also was recently a member of Bhutan’s parliament and who recommended the course to him and was a graduate from Australian Capital College.

As to why he has chosen his current education provider, the applicant stated that he went to the college prior to enrolling in the course, and that he saw the course content, which he saw was all relevant. He stated that the college fees were also affordable. The Tribunal does not make any adverse findings regarding the considerations at clauses 9(a) or 11(e) of Direction No.69.
As to his personal ties, the applicant told the Tribunal that he has no personal ties to Australia, although he also gave evidence that he has a son and a daughter who are both temporarily in Australia. He stated that his son was under the age of 18 when he arrived in Australia and came to Australia with the applicant and his wife. At the time of the hearing he was studying a Year 12 equivalent and then will be studying Business, which he plans to complete in 2021. The applicant stated that his daughter arrived in Australia in 2017 and is studying an Advanced Diploma in Business Management, which she will complete at the end of 2020. He stated that neither of these children live with him and his wife. He told the Tribunal that he has no other family in Australia.
As to his family in his home country, the applicant stated that he has a daughter who is in Bhutan, and that he has land and a house in Bhutan, which his daughter is looking after. The applicant provided a statement from his daughter in Bhutan, supporting his claim that she is looking after the applicant’s land as well as her grandparents. The applicant gave evidence that he has not returned to Bhutan since his arrival in 2015. He stated that he has in mind returning to Bhutan, but he is now holding a Bridging visa, so he has not travelled. In his s.359(2) response the applicant stated that he keeps in contact with family in Bhutan every week through WeChat. He also stated that he has community ties to Bhutan through livestock and milk cooperatives and a vegetable marketing group.
Having considered the evidence provided regarding his personal ties, the Tribunal considers that the applicant has personal ties in Australia which would present as a strong incentive to remain in Australia. Not only has the applicant’s wife accompanied him to Australia, but two of his children are also present in Australia. Although the applicant and his agent argued that these ties are temporary, the Tribunal notes that on the applicant’s evidence one of his children is studying in Australia until late 2020 and another until 2021. The Tribunal considers that the majority of the applicant’s immediate family unit is temporarily residing in Australia, and this is likely to present as an incentive to further extend his stay in Australia. The Tribunal also considers that the applicant’s lack of return travel to Bhutan since his arrival in Australia on 13 May 2015 further suggests that any personal ties he has to Bhutan may provide little incentive for return to his home country following completion of his studies.
The applicant gave evidence that prior to coming to Australia he was a Chief Livestock Officer in Bhutan and he worked in this role for more than 15 years. He stated that while he was studying Business through his Endeavour Scholarship he was on study leave from his role in Bhutan, but he has since had to resign from this role in order to complete his further studies. He stated that he now has a different plan and that he does not intend to return to work in a government role in Bhutan, but to start his own business and to run for the 2023 elections. He told the Tribunal that he has no intention of staying in Australia as he has better opportunities in Bhutan. He gave evidence that both he and his wife work as cleaners in Australia in accordance with the 20 hours per week which they are entitled to work as a condition of their Bridging visas.
The Tribunal accepts that the applicant has had a long-term career in his chosen field in Bhutan. The Tribunal also accepts that the applicant owns land in Bhutan, that he has not been developing a career in his chosen field in Australia, and that he may have more economic opportunities available to him in Bhutan (although gives little weight to his business plan for a poultry farm, given the applicant authored the business plan). Accordingly, despite the economic disparity between Australia and Bhutan, the Tribunal does not make any adverse findings regarding the applicant’s economic circumstances.
There is no evidence of any military service obligations that would act as an incentive for the applicant to remain in Australia. The applicant gave evidence that the situation in Bhutan is peaceful and his agent made submissions in this regard as well. The Tribunal accepts that there are no civil or political issues of concern. There is no evidence that the applicant has entered into a relationship of concern. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in Bhutan, relative to others in that country, and the Tribunal makes no adverse findings in regards to these factors.
The applicant’s immigration history refers to both his travel and visa history. The applicant arrived in Australia on 13 May 2015 on a Student visa which was valid until 23 August 2017. The applicant has now applied for a further Student visa to undertake a Diploma of Leadership and Management, which he completed in February 2019. The applicant has subsequently enrolled in the Advanced Diploma of Leadership and Management and told the Tribunal that he expects to complete it on time in March 2020 and by mid-March 2020 he will return to Bhutan. He gave evidence that he has not previously had any visas refused or cancelled.
As noted above, the applicant’s current visa application was in respect of an enrolment in the Diploma of Leadership and Management, which he completed in February 2019. Rather than returning to his home country, the applicant has proceeded to enrol in the Advanced Diploma of Leadership and Management. Although this course progresses on from the Diploma of Leadership and Management, the Tribunal has concerns that the applicant has already completed an Advanced Diploma in Business in 2017 and is not progressing academically by undertaking further studies in Australia at the vocational level. This is of concern given the lack of evidence as to the value of his current studies to his future and his existing qualifications at a higher level, including postgraduate qualifications obtained in the UK. This enrolment history suggests the applicant has not enrolled in the Advanced Diploma of Leadership and Management for stated reasons, but has more likely enrolled in it to extend his stay in Australia. This raises concerns regarding the considerations at clauses 11(b) and (c) and 14(b)(iii) of Direction No.69. The Tribunal places weight on the applicant’s circumstances that indicate the Student visa is intended primarily for maintaining residence in Australia.
The Tribunal has had regard to the applicant’s claims that he is now too old to apply for a temporary resident visa as he is over 45, as well as the submissions made by his agent in this regard. The Tribunal gives little weight to these claims and notes that temporary residency programs are not the only means through which a visa applicant may seek to maintain or extend their stay in Australia. Having assessed the applicant’s enrolment and education history, his stated plans for the future and his circumstances as a whole, the Tribunal considers the applicant may have applied for the Student visa for reasons other than those stated, and primarily to extend his stay in Australia.
The Tribunal has considered the applicant’s completion of all of the courses which he has enrolled in in Australia. The applicant gave evidence that his enrolment in the Diploma of Leadership and Management was valid from 15 August 2017 to 15 February 2019, but he successfully completed this course on 15 November 2018 by fast track. The Tribunal has had regard to this in considering the applicant’s circumstances as a whole, but considers that on balance this and other evidence provided by the applicant is not sufficient to address the concerns raised above.
For the avoidance of doubt, the Tribunal confirms that it makes no adverse findings regarding the following matters relating to the applicant’s immigration history: clauses 14(a)(i) and (ii) and 14(b)(i), (ii) and (iv).
The Tribunal notes in any case that the applicant’s enrolment in the Advanced Diploma of Leadership and Management was due to finish on 2 March 2020 and the applicant has therefore had the opportunity to complete his proposed courses of study, and on his evidence should now be in a position to return to his home country to take up his stated opportunities.
The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application, as well as the submissions made by his agent in writing and the oral submissions provided at the hearing.
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.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Frank Russo
Member

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

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2020] AATA 1830

12 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention

Jurisdiction