Gill (Migration)

Gill (Migration) [2024] AATA 1447 (14 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Simranjit Singh Gill
CASE NUMBER:  2209739
HOME AFFAIRS REFERENCE(S):          BCC2022/632524
MEMBER:Frank Russo
DATE:14 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 14 May 2024 at 3:24pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study history – multiple lower-level courses in different subject areas completed – difficulty with online study during COVID restrictions – multiple cancellations of enrolment in current course – non-commencement, unsatisfactory progress and change of college – no work history in home country, and work in Australia – sister living interstate in Australia, and extended family and joint ownership of property in home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 June 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 11 March 2022. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
The applicant is a 38-year-old Indian national who first arrived in Australia in 2008, holding a Student visa. The Student visa application under review was made in respect of the applicant’s enrolment in a Bachelor of Business which was due to be completed on 21 May 2023. At the time of the hearing the applicant had another confirmation of enrolment (CoE) for the Bachelor of Business with an end date of 11 December 2026.
The applicant appeared before the Tribunal by telephone on 15 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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.
In addition to the application form and copy of the delegate’s reasons for decision and notice from the Department of the delegate’s decision, the applicant provided the Tribunal with a copy of his Indian passport and the following other documents in support of his claims:
a.A response to an invitation by the Tribunal under s.359(2) of the Act to provide information, including a completed ‘Request for Student Visa Information’ form and an offer and acceptance of enrolment form for the Bachelor of Business, issued by Universal Business School / Group Colleges Australia (GCA) on 19 September 2023;
b.A CoE for the Bachelor of Business at GCA, starting on 28 August 2023 and ending on 21 August 2026; and
c.A response to the hearing invitation.
The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department and has had regard to the documents on that file, which include:
a.a system-generated copy of the Student visa application;
b.an undated genuine temporary entrant (GTE) statement,
c.PDF documents containing evidence of completion of the following Australian qualifications:
i.Award of Certificate for English for Vocational Education issued by Carrick Institute of Education (Carrick) on 28 February 2008;
ii.Letter of completion and academic transcript for the Certificate III in Hospitality (Commercial Cookery), issued by Carrick on 19 May 2009;
iii.Letter of completion and academic transcript for the Advanced Diploma of Hospitality Management, issued by Carrick on 7 April 2010;
iv.Award of the Diploma of Business, letter of completion and academic transcript, issued by Carrick on 9 December 2011;
v.Award of the Certificate IV in Business Sales and letter of completion, issued by Carrick on 27 March 2012;
vi.Statement of attainment issued by KAPS Institute of Management on 14 March 2013;
vii.Course completion letter and statement of results for the Certificate III in Light Vehicle Mechanical Technology, issued by North Melbourne College (NMC) on 25 June 2014 and copy of the award of the Certificate III on 23 July 2014;
viii.Award of the Certificate IV in Automotive Management from NMC, dated 24 November 2014, together with statement of results;
ix.Award of the Certificate IV in Automotive from Australian Institute of Technical Training, dated 19 July 2016;
x.Award of the Diploma of Automotive Management, dated 11 January 2016, together with undated record of results and a statement of results as at 25 September 2019;
xi.Statement of completion and record of results for the Certificate IV in Automotive Mechanical Diagnosis, issued by Australian Institute of Technical Training Pty Ltd on 19 July 2016; and
xii.Award of the Diploma of Automotive Technology, together with course completion letter and record of results, issued by Acumen Education on 19 January 2017;
d.Evidence of overseas student health cover; and
e.Copy of the applicant’s Indian passport.
The Tribunal has also had regard to these documents.
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 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. The Tribunal notes that Direction No 108 commenced on 23 March 2024. Part 2 of Direction No 108 is expressed in the same terms as Part 2 of Direction No 69, which previously applied and which the Tribunal discussed with the applicant at the hearing, other than the addition of the words ‘or Student Guardian visa application’ at clause 4(d) of the Direction No 108. The current application for review does not involve a Student Guardian visa application, and the Tribunal considers that the operation of the new Direction No 108 does not give rise to any new or additional considerations beyond those which were raised with the applicant at the hearing.
Direction No 108, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant’s oral evidence at the hearing
The applicant gave evidence that he first arrived in Australia in January 2008, holding a Student visa, which was granted for the purpose of undertaking a course in Hospitality Management. He stated that he has completed all courses that he has previously been enrolled in, which include the Advanced Diploma of Hospitality Management, Certificate IV in Business, Diploma of Business, Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Mechanical Diagnosis and a Diploma in Automotive Management.
The applicant confirmed that he is currently enrolled in a Bachelor of Business. When asked how he is going with his current enrolment, the applicant responded that he is doing all right at the moment. He stated that he weas having problems when courses moved to online learning, and that he failed some units. He stated that he is doing his best and his college is helping him. He stated that he would be starting face-to-face classes in the week of the hearing. The Tribunal put to the applicant that the most recent CoE he provided for the Bachelor of Business is for three years of study, from August 2023 to August 2026. The Tribunal put to him that on the evidence he had provided to the Tribunal in his s.359(2) response, he has been enrolled in the Bachelor of Business since at least 2019, and questioned why he would now have a three-year enrolment in this course, given he had enrolments in this course for approximately four years prior to the commencement of this CoE. The applicant responded that everything was going well with his previous enrolments until the COVID-19 pandemic and classes went online. He stated that he cannot learn online, which is the reason why he is taking more time to finish his course.
When asked about his plans after he completes the Bachelor of Business, the applicant responded in vague and general terms, stating that he will go back to his home country and maybe open his own business. He stated that the business may be in the automotive field and that he wishes to obtain a Bachelor degree before he returns to his home country.
As to how the course of study will assist him with his future plans, the applicant stated that it will help him to know about management skills and how to manage finances and staff. He stated that it will help him to more deeply understand management and business and how to run a successful business.
The applicant gave evidence that he is currently working 20 hours per week at Coles, where he earns approximately $25,000 per year. He stated that he worked as a mechanic in 2016 and from 2018 to 2019. He gave evidence that his family in India includes his sister, an uncle and an aunt. He stated that his parents have passed away. He stated that his sister arrived in Adelaide a couple of months prior to the hearing, however, he lives in Melbourne. He stated that he is not in a relationship, and he currently lives with a friend. He gave evidence that his assets in India include farmland, a shop and a house, which are in both his name and his aunt’s name. He stated that his aunt gets the rent for the shop, his uncle uses the farmland, and the house is locked up and not used by anyone at present. He confirmed that he has never worked in India.
The applicant confirmed that there are no civil or political issues which would prevent him from returning to India. He gave evidence that he has no other applications for another class of visa which is yet to be determined and he has always followed the conditions of his visas in Australia. He stated that he has not previously had a visa application refused, other than the application for review, nor has he had any visas cancelled or considered for cancellation.
When asked whether there are any other relevant matters that he wishes the Tribunal to take into account, he stated that during the lockdowns associated with the COVID-19 pandemic, he could not concentrate and was demotivated, which is when the visa application was refused. He stated that he wants to finish his study and return to his home country, and that he wants a Bachelor degree to make his future secure.
Adverse information from the applicant’s enrolment record
The Tribunal adopted the procedure in s.359AA of the Act to put to the applicant information from his enrolment records from the Provider Registration and International Student Management System (PRISMS) database and his movement 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 put the following particulars of information to the applicant:
a.He was enrolled in English for Vocational Education from 14 January 2008 to 22 February 2008, which he finished. The Tribunal noted that he had a previous enrolment in this course in September 2007, followed by the Advanced Diploma of Hospitality Management from January 2008, but he did not arrive in Australia until January 2008, so the Tribunal would make no adverse findings about these earlier enrolments;
b.He was enrolled in the Advanced Diploma of Hospitality Management from 7 April 2008 to 19 March 2010, which he finished. He had a further enrolment in this course from 19 March 2010 to 1 April 2020, as a result of an extension to his CoE, which he also finished;
c.He was enrolled in the Certificate IV in Business Sales from 6 April 2010 to 3 September 2010, which is recorded as ‘Finished’;
d.He had an enrolment in the Bachelor of Business (Hospitality Management) from 2 August 2010 to 31 December 2012, which was cancelled on 23 September 2010 due to non-commencement of studies;
e.He was enrolled in the Diploma of Business from 20 September 2020 to 10 June 2011, which was cancelled on 28 October 2020 because of non-commencement of studies. He had a further enrolment in the Diploma of Business from 4 April 2011 to 15 November 2011, which he finished;
f.He had a second enrolment in the Certificate IV in Business Sales from 13 February 2012 to 23 March 2012, which he finished;
g.He had an enrolment in the Certificate III in Hospitality Management (Commercial Cookery) with a start date of 7 May 2012, which was cancelled before this start date on 5 March 2012, due to change to his CoE. An enrolment in the Advanced Diploma of Hospitality Management was cancelled the same day;
h.He was enrolled in the Certificate III in Automotive Mechanical Technology from 7 May 2012 to 25 April 2013, which was cancelled on 14 March 2013 because he transferred to a course at another provider;
i.He had an enrolment in the Diploma in Automotive Management from 6 March 2013, which was also cancelled before the start date;
j.He had a second enrolment in the Certificate III in Automotive Mechanical Technology from 15 May 2013 to 14 February 2014. Although the applicant’s enrolment in this course was cancelled on 6 September 2013, he then enrolled the same day in the Certificate III in Light Vehicle Mechanical Training, which he completed on 14 February 2014;
k.He was enrolled in the Certificate IV in Automotive Management from 26 March 2014 to 25 September 2014, which he finished;
l.He then has two enrolments in the Diploma of Automotive Management. The first was from 3 November 2014, but was cancelled on 27 July 2015 because of non-commencement of studies. The second was from 10 August 2015 to 16 November 2015, which he finished;
m.He had three enrolments in the Advanced Diploma of Management, one commencing on 23 November 2015, the other two commencing on 27 June 2016. All three enrolments were cancelled on 17 December 2015, because of deferment/suspension and changes to student enrolment;
n.He was enrolled in the Certificate IV in Automotive Mechanical Diagnosis from 23 November 2015 to 22 May 2016, which he finished;
o.He was enrolled in the Advanced Diploma of Leadership and Management from 27 June 2016 to 25 June 2017, which was cancelled on 6 July 2016 because of deferment or suspension;
p.He was enrolled in the Diploma of Automotive Technology from 28 July 2016 to 5 January 2017, which he finished;
q.He was enrolled in the Advanced Diploma of Leadership and Management from 23 January 2017 to 21 January 2018, which was cancelled on 24 March 2017 due to non-payment of fees;
r.He has had the following enrolments in either the Bachelor of Business or the Bachelor of Business (Management) from August 2018:
i.Bachelor of Business (27 August 2018 to 31 December 2021) – cancelled on 15 April 2019 because ‘Student Notifies Cessation of Studies’;
ii.Bachelor of Business (15 April 2019 to 15 July 2022) – cancelled on 15 May 2019 due to change in course in the same sector;
iii.Bachelor of Business (15 April 2019 to 15 December 2021) – cancelled on 20 August 2019 due to unsatisfactory course progress;
iv.Bachelor of Business (Management) (9 September 2019 to 31 July 2022) – cancelled 17 December 2021 due to unsatisfactory course progress;
v.Bachelor of Business (Management) (6 December 2021 to 31 July 2022) – varied on 7 March 2022 due to ‘Extension CoE created’, with the CoE recorded as ‘Finished’;
vi.Bachelor of Business (Management) (28 March 2022 to 31 July 2022) – cancelled on 23 December 2021, due to ‘Change to CoE/Student Details’;
vii.Bachelor of Business (Management) (22 August 2022 to 21 May 2023) – cancelled on 29 June 2023 due to non-payment of fees;
viii.Bachelor of Business (28 August 2023 to 21 August 2026) – cancelled on 9 October 2013 due to non-commencement of studies; and
ix.Bachelor of Business (15 January 2024 to 11 December 2026) – Approved.
The Tribunal put to the applicant that the information may be the reason, or part of the reason, for the Tribunal affirming the delegate’s decision. The Tribunal noted that this information may be relevant to the issue of whether the applicant is a genuine temporary applicant for entry and stay as a student for a number of reasons, including:
a.It indicates that he has been studying in Australia since January 2008, which at the time of the hearing was a period of 16 years, and he is now proposing to study until at least December 2026, which will bring his period of study in Australia to almost 19 years, which raises serious doubts about his claim that he wishes to remain in Australia only temporarily for the purpose of study;
b.He does not appear to have successfully completed any courses of study since he completed the Diploma of Automotive Technology in January 2017, approximately seven years ago;
c.He has enrolled in courses in a range of unrelated fields. Besides ELICOS English courses, he has enrolled in courses in Hospitality Management, Business Sales, Business, Automotive studies and Leadership and Management, which may indicate that he does not have a clear study or career plan and may have enrolled in courses in a range of fields to extend his stay in Australia; and
d.He first enrolled in Diploma courses in Business and Business Sales in 2010, which he finished in 2010 and 2012 respectively. He first enrolled in the Bachelor of Business in August 2018, over five-and-a-half years ago, yet is currently enrolled in the Bachelor of Business for three calendar years. His enrolments in the Bachelor of Business and Bachelor of Business (Management) were cancelled in August 2019 and December 2021 because of unsatisfactory course progress. This may indicate that he is not making progress with this course of study.

The applicant confirmed that he understood the information and its relevance to the issues before the Tribunal and that he wished to comment on his PRISMS enrolment records at the hearing. The applicant responded that he wished to explain why he was taking so long to complete the Bachelor of Business. He stated that a couple of times, his college cancelled his CoE by mistake, and he called the college and was issued with a new CoE. As to his CoE which was cancelled in 2023, he stated that he knew that he needed to pass the course units, but he was demotivated at the time and could not concentrate. He stated that the cancellation of his CoE put him under greater stress and he then tried to get a new CoE.
The Tribunal put to the applicant that even if it were to accept these reasons, he appeared to be taking a long time to complete the Bachelor of Business and his latest enrolment for three years appears to indicate that he did not make any progress with his previous enrolments in this course. The applicant responded that he was holding a Temporary Graduate (485) visa in 2017, then he enrolled in the Bachelor of Business. He stated that in 2019 he went to India to attend his sister’s wedding, and he gave this information to his college, but the college cancelled his CoE. He felt that the college was not supporting him, so he enrolled with a different college. He stated that he was going well with his studies with this other college, but then the study mode changed to online studies. He was not comfortable with online studies, and he struggled with the stress of lockdowns. He stated that now everything is back to normal, and he wants to finish his studies.
Other concerns raised with the applicant
The Tribunal raised other potential concerns with the applicant and gave him an opportunity to comment or respond to each. The Tribunal put to the applicant that he has never been employed in India and has been living in Australia for approximately 16 years, and it may not be satisfied that the applicant has an awareness of the Indian job market or genuinely intends to use the qualification from his current studies to find work in India. The applicant responded that he has gained work experience in Australia, and he can do better in India with international skills. He stated that he can speak English, so he can communicate with international companies easily.
The Tribunal put to the applicant that, although he has some ties to India, these may not act as a strong incentive for him to return there. The Tribunal noted that his parents are deceased, and his sister is now in Australia. The applicant responded that he is more stressed in Australia than he is in India, but he wants to complete his degree. He stated that his sister lives separately. He stated that he has cousins in India, as well as property there and he intends to start a business there. He stated that he has lots of things to do in India.
The Tribunal put to the applicant concerns with the value of the proposed course of study to his future, and that he has provided no evidence to indicate that he has investigated the work or business opportunities available to him in India. The applicant responded that his plan is to first finish his Business course, after which he will have to find a job to understand what is going on in the Indian job market. He stated that it will be a requirement for him to have a Bachelor degree, and that if his English skills are good and has a qualification, he will have more job opportunities.
The Tribunal put to the applicant that his employment in Australia may present as an incentive for him to remain in Australia and may indicate the applicant has stronger economic ties to Australia than to India. The Tribunal noted the applicant has previously worked as a motor mechanic and that according to his s.359(2) response, he has worked as a team member at Coles from May 2012 to July 2016, and then again from January 2017 until the present. The applicant responded that he was working in the automotive field and then the lockdowns associated with the COVID-19 pandemic happened. He continued to work at Coles because it remained open during the lockdowns. He stated that he only worked 20 hours per week because he did not want to stay home all the time. He stated that he wanted to work to gain more skills, but it was very hard for him to get jobs because of his visa conditions.
The Tribunal put to the applicant that the length of his stay so far in Australia may raise doubts that he intends to remain in Australia only temporarily, and he now proposes remaining here until at least December 2026, which will bring his stay in Australia to approximately 19 years. The Tribunal put to the applicant that his enrolment history may indicate that he enrolled in different vocational courses and is now maintaining enrolment in the Bachelor of Business over an extended period of time so he can maintain ongoing residence ion Australia. The applicant responded that there is no pathway for permanent residency from his proposed course of study. He stated that his intention is solely to complete his course of study. He stated that the lockdowns associated with the COVID-19 pandemic and other reasons led to delays in him completing his course. He stated that he wishes to obtain a Bachelor degree before returning to India.
Findings regarding the factors in Ministerial Direction No.108
Having considered the applicant’s claims against all the factors specified in Direction 108 and taking into account all the relevant information, the Tribunal is not satisfied that the applicant meets the genuine temporary entrant criterion. This finding is based on my findings with respect to a number of factors of concern in Ministerial Direction No.108.
The applicant’s circumstances in his home country
I accept that the applicant’s personal ties to India include the presence there of uncles, aunts and cousins. Although the applicant has not provided any supporting evidence of his claim that he is the joint-owner of assets in India, I am prepared to accept the applicant’s oral evidence that he is the joint owner of farmland, a house and a shop with his aunt. In his s.359(2) response, the applicant listed his sister as his only family member. However, at the hearing the applicant gave evidence that his sister moved to Adelaide a few months before the hearing. In his s.359(2) response, he declares that he has returned to India on eight occasions since arriving in Australia, each time for family visits. The most recent occasion was in January 2019.
While I accept that the applicant has some ties to India, which include part-ownership of farmland, a house and a shop, as well as the presence there of an uncle, aunt and cousins, I am not satisfied that these personal ties would serve as a significant incentive for him to return to his home country. In making this finding, I note that the applicant currently has no immediate family members living in India, with his sister currently living in Adelaide on a temporary basis, and with his parents being deceased. I give some weight to the presence of his extended family in India but find there is little evidence to indicate that this would act as a significant incentive for the applicant to return to his home country. While I have also accepted that the applicant is the part-owner of land and a shop in India, on the applicant’s own evidence, his aunt is currently collecting the rent for the shop, his uncle is using the farmland and the home is locked up. Given the current usage of two of these properties by other extended family members, I do not consider these properties would act as a strong incentive to return to India. The applicant has not provided any evidence of community ties to India. The applicant has not previously worked in India and has not provided any evidence of employment ties to India. While I have considered the applicant’s claims regarding the business he intends to start in India, I consider that such evidence was vague and of a general nature, with the applicant also having told the Tribunal that he will need to first find a job in India so he can understand the employment market in India. Given these findings and the applicant’s history of living in Australia for the past 16 years, I find the applicant does not have employment ties to India.
Given these findings, I also have concerns regarding the applicant’s economic circumstances. While I have taken into account the applicant’s evidence that he is the joint-owner of farmland, a shop and a house in India, given the applicant’s circumstances as a whole, I do not consider these assets would act as a strong incentive for the applicant to return to India. The applicant gave evidence that the farmland and shop are currently being utilised by his uncle and aunt. As noted above, the applicant has never been employed in India. In contrast, the applicant has worked for Coles since May 2012, apart from a period of approximately six months. I have taken into consideration the applicant’s evidence that he has only worked part-time for Coles, but I nevertheless consider the length of his employment indicates that it is stable employment. He also worked as a motor mechanic during the period from 2016 to 2018, which is one of the fields where he has obtained qualifications. He claims that he intends to return to India to start a business, maybe in the automotive field, however his evidence with respect to such a business was of a vague and general nature. Having considered the applicant’s economic circumstances as a whole, including his employment history, I have concerns that his economic circumstances would present as a significant incentive for the applicant not to return to his home country.
There is no evidence of any military service requirements or of any civil or political issues which would act as an incentive for the applicant to remain in Australia. There is no adverse evidence before the Tribunal regarding the applicant's circumstances in India, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.
As to his reasons for wishing to undertake the course of study in Australia, I have had regard to the claims contained in his s.359(2) response, where he states that Australian study is of a more practical nature than courses in India and gives the opportunity to enhance skills such as communication skills and decision making. I make no adverse findings regarding the applicant’s reasons for not undertaking the study in his home country.
The applicant’s potential circumstances in Australia
The applicant first arrived in Australia in January 2008, holding a Student visa. He has subsequently been granted a further five Student visas, as well as a 485 visa from March 2017 to September 2018 and associated Bridging visas. To date, the applicant has been residing in Australia for over 16 years. He is currently enrolled in a Bachelor of Business with an end date of 11 December 2026, which would extend his stay in Australia to over 18 years and 10 months. This in itself is an extensive period of time to remain in Australia on temporary visas and raises concerns about his claim that he intends to remain in Australia only temporarily for the purpose of study. As noted above, the Tribunal raised with the applicant numerous concerns with his enrolment and study history in Australia, as set out in his PRISMS record, including that he has not successfully completed any courses of study since January 2017, he has enrolled in courses in a range of unrelated fields, including Hospitality Management, Business Sales, Business, Automotive studies and Leadership and Management. Despite first enrolling in the Bachelor of Business in August 2018, over five-and-a-half years ago, the applicant is currently enrolled in the Bachelor of Business for a further three calendar years. This suggests the applicant has in the past five-and-a-half years made no or little progress with his enrolments in this course. The applicant has not provided transcripts or records of results to indicate that he has successfully completed any units in the Bachelor of Business, nor is there any evidence that he is obtaining credit for any prior studies. Two of his enrolments in this course were cancelled because of unsatisfactory course progress in August 2019 and December 2021.
I have taken into account the applicant’s evidence that he was holding a 485 visa from March 2017 to September 2018, and note that it was not a requirement of that visa that he be enrolled in a course of study or maintain satisfactory course progress, however, I note that the conditions of the 485 visa did not prevent the applicant from enrolling in a course or studying. I note that the timing of the applicant’s enrolment in the Bachelor of Business from 27 August 2018 coincided with the ending of his 485 visa in September 2018, and consider the applicant’s enrolment in the Bachelor of Business was motivated at least partly by a desire to obtain a successful visa outcome. I have considered the applicant’s stated reasons for not making progress with his course of study over the subsequent five-and-a-half years, including his claims that he was demotivated and could not concentrate, the stress of the COVID-19 pandemic, courses moving to only study mode and his claim that his colleges cancelled his CoEs by mistake a couple of times, but do not consider the applicant has provided sufficient explanation for the lack of progress over such an extended period of time. I note that I have given weight to the applicant’s enrolment in a Bachelor degree course and to his claims that he wishes to complete a Bachelor degree prior to returning to India, however, after considering the applicant’s enrolment and extensive visa history as a whole, I consider they raise concerns that he is using the Student visa programme to maintain ongoing residence and to circumvent the intentions of the migration programme.
There is no evidence that the applicant has family ties to Australia, other than the presence of his sister, who at the time of the hearing was living interstate in Adelaide on a temporary visa. I make no adverse findings about his family or community ties to Australia.
As noted above, I have some concerns regarding the applicant’s employment in Australia, which may present as some incentive for him to remain in Australia. The applicant has worked for Coles since May 2012, apart from a period of approximately six months. While I have taken into account his evidence that he has only worked part-time for Coles, I nevertheless consider the length of his employment indicates that it is stable employment which would present as an incentive to remain in Australia.
There is no evidence to suggest the applicant is in a relationship, nor any evidence to suggest that he has entered a relationship of concern. Given the length of time the applicant has remained in Australia, I make no adverse findings regarding his knowledge of living in Australia, nor of his knowledge of his current course or education provider.
Value of the course to the applicant’s future
The applicant completed the equivalent of Year 12 in India. There is no evidence that he has completed any tertiary qualifications in India, and he denied having worked in India. Since arriving in Australia in 2008, the applicant has completed and been awarded a number of vocational qualifications, including an Advanced Diploma of Hospitality Management, Certificate IV in Business Sales, Diploma of Business, Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Mechanical Diagnosis, Diploma of Automotive Management and the Diploma of Automotive Technology. The applicant is now enrolled in the Bachelor of Business. The applicant’s evidence at the hearing as to the value of this course of study to his future was somewhat general and vague and did not demonstrate any research into the job market in India. For instance, he stated that he would need to find a job in India in order to understand what is going on in the Indian job market and was unable to tell the Tribunal what opportunities his proposed course of study would open up for him. In his GTE statement to the Department, the applicant states that the combination of skills in Business, together with his existing automotive knowledge, will provide him with opportunities within the automotive industry in India, which he states is a growth industry. He lists a number of automotive companies. Given the Bachelor of Business would give the applicant a graduate qualification which is higher than the existing vocational qualifications he has, I accept that the course of study may be of value to his future. I accept that it may result in additional employment opportunities or improve his employment and business prospects. I therefore make no adverse findings regarding the value of the course to the applicant’s future and give this factor some weight in the applicant’s favour in assessing his circumstances as a whole.
The applicant’s immigration history
The applicant’s immigration history refers to both his visa and travel history. As noted above, the applicant arrived in Australia in January 2008, over 16 years ago. He has already held six Student visas, a 485 visa and associated Bridging visas. The applicant has not successfully completed a course of study since January 2017. He now proposes remaining in Australia at least until December 2026 to complete a three-year Bachelor degree which he has been enrolling in since August 2018. The applicant has provided no evidence of any progress in this course since that date and his PRISMS record indicates that two of his enrolments were cancelled because of unsatisfactory course progress. As noted above, while I have considered the applicant’s stated reasons for his lack of further progress, I do not consider these to be sufficient explanation for the lack of academic progress over such an extended time.
The applicant’s proposed studies would also bring his stay in Australia to over 18 years and 10 months, which is a significant length of time considering the applicant’s enrolment history since 2018.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia, and his enrolment history, I have concerns that a further Student visa would be used primarily to maintain ongoing residence.
I do not make adverse findings regarding the remaining factors relevant to the applicant’s immigration history. There is nothing to indicate that he has an adverse visa or migration history to any other country. There is nothing to suggest that he has previously been refused a visa application or had a visa cancelled or considered for cancellation. The applicant gave evidence that he has complied with the conditions of his visas in Australia, and I make no adverse findings regarding this factor. There is nothing to indicate that the applicant has any other applications for a different class of visa which are yet to be finally determined. However, for the reasons provided above, the Tribunal has concerns regarding the amount of time the applicant has spent in Australia and whether the Student visa may be used primarily for maintaining ongoing residence.
Any other relevant matters and conclusion regarding findings
The applicant is not a minor, so this factor is not relevant.
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.

For the reasons set out above, I have concerns regarding several factors set out in Direction No. 108, including factors relevant to the applicant’s potential circumstances in Australia and his immigration history. After weighing up the applicant’s circumstances as a whole, I am not satisfied that the applicant intends genuinely to stay in Australia temporarily.
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 decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Frank Russo
Member

Attachment – Direction No.108
DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 21 March 2024
Clare O’Neil

Minister for Home Affairs and Minister for Cyber Security
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 - Preliminary
Name of Direction
This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 108.
Commencement
This Direction commences on 23 March 2024.
Revocation
Direction No. 69, given under section 499 of the Act, is revoked.
Interpretation
Act means the Migration Act 1958.
Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.
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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).
This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.
This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.
Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
Preamble
The Australian Government operates a student visa program 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 program 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 – 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 or Student Guardian 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 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8. Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia. The applicant’s circumstances in their home country
9. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a) whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b) the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c) economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d) military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e) political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10. Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11. In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a) The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b) evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c) whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d) whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e) the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12. Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a) whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b) relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c) remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13. An applicant’s immigration history refers both to their visa and travel history.
14. When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a) Previous visa applications for Australia or other countries, including:
i. if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii. if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
iii. b. Previous travels to Australia or other countries, including:
iv. 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;
v. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
vi. 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
vii. 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 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.

[2024] AATA 1447

14 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal