Fawad (Migration)

[2019] AATA 5888

Fawad (Migration) [2019] AATA 5888 (8 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad Fawad
Master Muhammad Abdul Moiz
Mrs Tehmina Aziz

CASE NUMBER:  1804055

HOME AFFAIRS REFERENCE(S):           BCC2017/4444661

MEMBER:Genevieve Cleary

DATE:8 December 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

The Tribunal remits the applications of Tehmina Aziz and Muhammad Abdul Moiz for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the applicants meet the criteria in clause 500.311 in Schedule 2 of the Migration Regulations.

Statement made on 08 December 2019 at 11:05pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – stopped studying – ill health of son – long term employment in Australia – plans to open engineering firm in Pakistan – financially supported by family – good employment prospects in Pakistan – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 499
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 Home Affairs on 2 February 2018 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 24 November 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.

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, based on the following, they were not considered to be a genuine temporary entrant:

a.   His child and wife are here,

b.   He has long-term employment as a security guard here, and

c.   He has been here since 2011.

4.     The applicants appeared before the Tribunal on 24 June 2019 to give evidence and present arguments.

5.     The applicants were assisted in relation to the review by their registered migration agent.

6.     Prior to the hearing the applicant sent the following to the Tribunal:

·     The Decision Record of the delegate;

·     Response to request for visa information;

·     Copies of passport pages of each applicant;

·     A register of land in favour of the applicant’s parents;

·     A letter from Qazi Cycle Store saying that the applicant’s father is a partner in that business;

·     One statement each from the two adult applicants;

·     Death certificates of family members, and

·     Medical documents of his son.

7.     At the Tribunal the applicant provided a bank statement in the name of Farooq Mohammed, and subsequent to the hearing the applicant sent to the Tribunal bank and other financial documents and statements showing the family’s financial status.

8.     The Tribunal has also had regard to the Department file.

9.     For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 applicant for entry and stay as a student in Australia.

Genuine applicant for entry and stay as a student (cl.500.212)

11.      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?

12. 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.

13.      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 applicants’ circumstances in their home country

14.      The applicant came to Australia on 29 September 2011.  He was 19, almost 20. He came to study a Diploma of Business.  In Pakistan he had completed his year 12 with a view to studying in commerce. However, his parents wanted him to have a higher education qualification from an English speaking country.

15.      There are 3 children in the family, however the applicant’s sisters are married and his parents want him to ultimately take care of them.  His mother wanted him to complete his studies before he returns, however she does want him to come back at some point. 

16.      The applicant’s father runs a cycle business, and has pushed the applicant into assisting him in that business, however the applicant has not wanted to do that. from the descriptions of what the applicant told the Tribunal that he has always been interested in, such as the workings of his uncle’s mill, the Tribunal accepts  that the applicant has been interested in and wishes to pursue an engineering skills-based career, or management in such an area.

17.      At the hearing of this matter the Tribunal was shown a bank statement showing that Mahomed Farooq, the applicant’s father, has a bank balance of 2,316,049 P Rp as at 22.6.19 after the sale of products.  He is a wholesaler.  This is from one sale.  Some of this will go back to the cycle store, and any profits have to be shared with a partner. The business is conducted in cash.  The applicant’s father owns the property in which the shop is run so he does not pay rent.  This money in the account pays his salary.  The balance is approximately $21,000 AUD.  The applicant is of the view that his father will keep the money for him because he is the only son and he will support his studies.  His father is paying for his courses.

18.      The applicant chose to study in Australia to gain an advantage over those in Pakistan, and to experience the environment in Australia.  The Tribunal accepts that the applicant has reasonable reasons for coming to and studying in Australia. 

19.      The applicants are not subject to national service and there is no political or civil unrest or economic reasons that would be cause for them not to return to Pakistan, or provide an incentive for them not to return, and the Tribunal gives these factors some weight in their favour.

20.      The Tribunal is satisfied that the applicants have some ties to Pakistan, such that they have some incentive to return, however it also notes that the applicant’s parents can and have come to Australia to stay with the applicants. There is no other evidence before the Tribunal about any other ties the applicants have to their communities in Pakistan. The Tribunal gives the applicants’ ties to Pakistan limited weight in their favour.

The applicant’s studies and reasons for coming to Australia

21.      The applicant came to Australia on 29 September 2011. He was 19.  This is young to travel to another country to study. He came to study the Diploma of Business at the Business and Technology Institute of Australia in Perth, at his father’s suggestion.  The applicant was therefore young, and doing what his father wanted him to do.  He was to return to assist in his father’s shop, however as is discussed elsewhere, this is not what the applicant wanted to do.  In any event, the Tribunal accepts that in following his father’s wishes, and in his father wanting his son to improve his skills in business, in English, with an Australian qualification, is a reasonable reason for studying in Australia, and the Tribunal gives this factor some weight in his favour.

22.      The applicant told the Tribunal that his initial thoughts were to come to Australia, and then go back to Pakistan to work, or establish a business.  If a business, it would be a cycle business, because his father wanted him to be involved in his business, but the applicant told the Tribunal that he had never really wanted to do that.  He wanted to be involved in a flour or spinning mill.  When he was a child he visited on many occasions a flour factory belonging to a relative. He was fascinated by its mechanisms and the way it ran, and felt that this may be an alternative to his father’s cycle shop. Alternatively because Pakistan is growing its infrastructure he felt that he could work in the engineering industry.

23.      He studied that for 6-7 months, but then decided to change course. He was not satisfied with the subjects, and was bored.  He changed to the Diploma of Management at Kingston College, however felt the same about that course; he felt that the course was not adding value to any future he may have in Pakistan.

24.      He then spoke to his parents and told them that he wanted to study something technical, that is, not generic in its application. The Tribunal accepts that young students may struggle being away from home, and attempting tertiary studies in a foreign language.  The Tribunal also accepts that young students do not always know what they really want to study when they leave school, and may have a change in direction, or may not want to work in a family business as their families expect them to.  Changes to courses and course providers, and some failures in units, are reasonable in those circumstances.  The Tribunal does not place any weight against the applicant for the change in direction from his original course of study.

25.      After speaking to his parents the applicant applied to study the Advanced Diploma of Electrical Engineering Technology at Challenger Institute of Technology in Fremantle. Having enrolled in that course in January 2014 he completed it at the end of 2015. After completing that course he applied for a temporary graduate Visa (subclass 485).  Given the applicant’s interest in engineering and mechanical matters, the Tribunal is satisfied that this course, and the subsequent attempt to gain experience in the field, were of value to the applicant’s planned future, and add weight to his being a genuine student at that time. He also at that time went to Pakistan and was married in accordance with his parents’ request.

26.      He and his new wife then both returned to Australia in May 2016 and the applicant sought drafting jobs so that he could enhance his drafting skills and ultimately start his own AutoCAD business in Pakistan. He found it difficult to gain employment in that area, mostly being told that because he did not have his permanent residency or citizenship he was not employable.  He did not study during the time of seeking work with the 485 Visa because he wanted to be available to the employer. He did however work at a security company during that time so that he could support himself and then his wife.

27.      When the 485 visa was due to expire he decided to remain in Australia and further his studies. He felt that without the work experience a qualification at diploma level was not going to achieve for him what he wished to upon return to Pakistan.  The applicant also took into account the qualifications he already had, and he felt he was lacking. He felt that a Diploma level course was not sufficient to secure a job, however the Tribunal notes that the applicant is currently enrolled in such a level course.

28.      He enrolled in a Diploma of Project Management. He did not complete this course as during this time his son was born with a medical condition that required surgery. He found study difficult during this time and was too worried about his son to attend to his studies.  In fact, he did not complete any units in the Diploma of Project Management.  He only attended for one month.  He did not defer or seek assistance, and the college cancelled the course in March 2018, around about the same time that he was told his Student visa application was to be refused.

29.      At the same time there were some deaths in Pakistan – the applicant’s uncle and mother in law, and more recently his grandmother.  The applicants could not return to Pakistan because their son could not travel.  His uncle died in May or June 2018 and his mother in law died on 22 April 2018.  His grandmother died 15 February 2019.  His parents came to visit and assist with the medical needs of the applicants’ son in 2018, and when they returned to Pakistan they were already worried about his grandmother, and the applicant’s mother was subsequently diagnosed with depression. 

30.      The applicants chose not to return to Pakistan when they knew their son had the medical condition as they felt that the medical attention their son would get in Australia would be superior to that in Pakistan, and, given their son was born here, they felt that continuity of medical attention was important. He is still to have further surgery. The Tribunal accepts that the adult applicants, as parents, would be concerned about their son and his medical condition and would make decisions which put his health as a paramount concern. The Tribunal also accepts that remaining in Australia is a reasonable course of action in the circumstances and because of the particular nature of this case, takes the view that the applicants’ choices in this regard, and the applicant’s lack of ability to study during that time do not weigh against him.

31.      The applicant agreed that he was not studying for virtually the whole of 2018.  He also stopped working for a time so that he could assist in the care of his son. He agreed that he did not tell the Department that he was not studying.  He went back to work in February 2018, about the same time that he stopped studying.

32.      However, he then enrolled in the course he is currently studying, the Diploma in Leadership and Management at Keystone College, because he realised that being in Australia was his best opportunity to learn.  It would also enable him to open an engineering firm. His son is now stable and this has enabled him to return to his studies and concentrate on them. He anticipates that with the current course and his qualification in engineering technology he could gain employment in the China/Pakistan construction program.  He believes this boom will last for approximately 10 years.

33.      His goal is to open a firm of approximately 15 – 20 employees.   He will get the money from his father, set everything up, such as the equipment and then return the money to his father.  He estimated he will need $100,000 AUD.  He told the Tribunal that the government in Pakistan provides bank loans for small businesses up to $500,000. To qualify for the loan he has to show his business plan which will be assessed to determine whether the business will assist the country.  To have his business assessed he has to own property and requires a source of income.  His father’s business will be the source of income and his father will guarantee that business.  The bank documents provided show that the applicant’s family have money, and the applicant says that they therefore can financially support him in preparing to set up his business.

34.      The applicant felt that because he had not completed his earlier courses he now needed to complete a business course to impress those who are assessing his loan applications, and to assist him in starting a business. He also told the Tribunal that after completing the engineering course he realised he would be open to running an engineering business, whereas he had not really wanted to open a business before.  The Tribunal repeats here its findings on the reasonable reasons for the applicant changing his courses.  The Tribunal finds that this course of direction has also been explained adequately by the applicant, and is not satisfied that the current study in business adds any weight to the applicant, in this case, not being a genuine student, or using the Australian visa programme to maintain ongoing residence in Australia.

35.      The course the applicant is currently studying, he says, has a different focus to the first course he commenced, but did not complete.  It concentrates on starting from the inception of a company structure. At the hearing of this matter before the Tribunal the applicant discussed the subjects in the course and how they better relate to his goal of opening and running a business. He felt that the previous courses that he had commenced were more general and concentrated on starting employment in businesses which were already on foot.  The applicant also told the Tribunal that there were no such courses in Pakistan.

36.      While the current course he is studying is at a lower level than the engineering course he completed, the Tribunal is satisfied, in the circumstances of the applicant wanting to complete all the education he needs to be able to open a business, rather than to gain a specific qualification in a specific field, that what appears to be a lack of academic progression is explicable, and the Tribunal does not place any weight against the applicant for that factor.

37.      If the applicant does not succeed at this course, or does not succeed in opening a business, the alternative for him is that he returns to Pakistan and works in his uncle’s mill, where he would earn around $20,000 per annum.   If he works for his father, depending on how the business is faring, he would earn a share of about $50,000 or $60,000 per annum.  However, the Tribunal accepts that, given his interest in technical matters, the applicant is not so interested in doing this, and wishes to pursue an engineering skills career.

38.      The Tribunal is satisfied that the current course in which the applicant is studying adds value to the applicant’s prospects and future, and that he has sufficient knowledge of and plans for that future that these factors add weight to him being a genuine student for stay temporarily in Australia.  While he has been open about wanting to stay for the medical attention for his son, the applicant has also shown that he is taking the opportunity to progress his qualifications and prospects, and he is to be given considerable weight in his favour for doing so.

39.      His current course is due to finish on 13 June 2020.

The applicants’ circumstances in Australia

40.      The applicant has relatively consistently worked at one security company while being in Australia and has also worked for another for some time, however, that company no longer exists. The applicants’ son was born in August 2017 and the applicant stopped working in December 2017.  He wanted to spend time with his son and assist in his care.  The family were living on savings and the applicant’s parents came to Australia to support them, staying until February 2018.  After they left he started working again.

41.      The applicant Tehmina Aziz does not work in Australia.  She was a lecturer in physics in Pakistan, having completed her masters in physics there. Depending on their son’s health she may return to work when they return to Pakistan, and has the intention of completing her PhD in physics when she can.  She is of the view that her in-laws are relatively broadminded, and they will support her return to work upon her return to Pakistan.

42.      The applicants are being financially supported by their families in Pakistan, in addition to any employment Mr Fawad has.

43.      The Tribunal is satisfied that despite the ties the applicant may have developed in his work in the one security company in Australia, the applicant Tehmina Aziz and the applicant have good employment prospects in Pakistan, whether it be, for the applicant, with his father, or otherwise.  Therefore, in comparison to their prospects in Australia, the applicants appear to have reasonable prospects in Pakistan, and this weighs in favour of the applicants having an incentive to return to Pakistan, and against the applicants having a strong incentive to remain in Australia.  The Tribunal therefore can place weight on the applicants having good prospects in Pakistan despite the amount of time they have spent in Australia and the fact that the applicant has his immediate family here with him.  

44.      If their son remains in need of care, they will need the support of their families in Pakistan.  Despite the availability of good medical care in Australia, the Tribunal is satisfied that this would add incentive for the applicants to return home.  The applicants’ incentive to stay is therefore outweighed by the incentive to return home, and their prospects should they return home, and this can be given some weight in their favour.

The applicants’ visa and travel history

45.      The applicant returned to Pakistan in 2015 for a holiday and then March 2016, staying for 2 months to be married. The applicants have not returned since then because of the health of the baby and they could not afford to travel.  Travel caused the boy pain.  They wanted to go because of the deaths, but they felt that they could not.

46.      The Tribunal notes the applicant’s evidence that he stopped studying for some time, and that is, effectively, against the intentions of a Student visa, although by this time his Student visa application had been refused and he was in Australia on a Bridging visa.  Otherwise, none of the applicants has had a visa refused or cancelled elsewhere, and there is no evidence before the Tribunal to suggest that they have not complied with visa conditions either in Australia or elsewhere. There are no other outstanding visa applications yet to be finally determined.  There is no evidence that any of their family have an immigration or visa history of concern.  Given the Tribunal’s findings above about the choices made by the applicant to stay in Australia when he was not studying, and the reasons for him not studying, the Tribunal gives the applicants some weight in their favour for those other factors regarding their visa compliance.

47.      There are no other current visa applications which are yet to be determined, and therefore that factor is not relevant to the Tribunal’s determination.

48.      The Tribunal finds that, based on the applicant’s and his wife’s circumstances in their home country (including their financial position and the support they have from their families) relevant to others in that country, they are in a good position and it would not provide a significant incentive not to return home. The Tribunal accepts that the applicant and his wife are not in a relationship of concern for a successful visa outcome.

49.      The Tribunal accepts that given that the applicant has been in Australia since 2011, the applicant has spent considerable time in study, without progressing beyond the Diploma level education.  However, as is described above, there were circumstances beyond the applicants’ control that lead the applicant to find, reasonably, the courses he had undertaken unsuitable, and to find studying difficult, and there were reasonable reasons for the applicant changing direction in his study; the Tribunal does not place any weight on the length of time he has been here.

Is the applicant a minor?

50.      While one of the applicants is a minor, he is not the primary applicant. He will, no doubt, travel with his parents, the other applicants, no matter what the outcome of this application. Therefore, the intentions of his parents is not relevant to the Tribunal’s determinations in this case.

Any other relevant matters

51.      The Tribunal is satisfied that there are no other relevant matters to consider.

52.      On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

Does the applicant intend to comply with visa conditions?

53.      For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

54.      A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions must also be imposed: 8303 (no dangerous/disruptive/violent activities), 8304 (must use the same name), 8564 (no criminal conduct) and 8602 (no outstanding public health debt).

55.      There is no evidence before the Tribunal that the applicants will not, or do not intend to, comply with visa conditions.  As has been discussed in these reasons above, while the applicant did stop studying for some time, and has been in Australia for what may ordinarily be considered longer then would be required to complete the course he is currently studying and therefore the level of study at which he is currently attempting, there were reasonable reasons for doing so, and the Tribunal is not satisfied that the applicant does not intend to comply with visa conditions in the future.

56.      On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

57.      For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

58.      There is no other evidence about any other relevant matter before the Tribunal that assists the Tribunal in determining whether the applicant is a genuine applicant for entry and stay as a student.

Conclusion on cl.500.212

59.      Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

60.      Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

DECISION

61.      The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

62. The Tribunal remits the applications of Tehmina Aziz and Muhammad Abdul Moiz for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the applicants meet the criteria in clause 500.311 in Schedule 2 of the Migration Regulations.

Genevieve Cleary
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.