Gurung (Migration)

Gurung (Migration) [2020] AATA 6100 (15 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Kavita Gurung
CASE NUMBER:  1917179
HOME AFFAIRS REFERENCE(S):          BCC2019/1797273
MEMBER:Robert Cumming
DATE:15 December 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa.

Statement made on 15 December 2020 at 4:33pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met – mental health condition – a significant incentive to remain in Australia –use the student migration program to maintain ongoing residence –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363, 499
Migration Regulations 1994, Schedule 2, cl 500.212
CASES
Hasran v MIAC [2010] FCAFC 40

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 13 June 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 11 April 2019. At the time of application, Class TU contained 2 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 the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations), because the delegate was not satisfied the applicant intended genuinely to stay in Australia temporarily.
On 27 April 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide all relevant information about the course(s) of study the applicant was undertaking and her entry and stay in Australia as a student in writing. The Tribunal stated in the letter that specific details about the information requested was set out in a Request for Student Visa Information form (information form) and instructions for accessing the information form were provided in the letter.
The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by the prescribed period, being 11 May 2020, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant did not provide the information within the prescribed period but did seek an extension of time, but this too was made out of time on 14 May 2020. Documents relating to the applicant’s enrolment were received by the Tribunal on 15 May 2020, and a completed information form and supporting documents were received by the Tribunal on 19 May 2020.
In these circumstances, s.359C of the Act applies and pursuant to s.360(3) of the Act, the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.
The Tribunal has decided to proceed to decide the application on the basis of the information before it. While the applicant has lost her right to a hearing, the documents she provided after the time in which her appearance rights would have been preserved, have nevertheless been fully considered by the Tribunal.
Further, in the conduct of the review by the Tribunal, certain information, including that set out in a printout from the Provider Registration and International Student Management System (PRISMS) relevant to the applicant, a printout of the Department movement records for the applicant and certain information about the applicant’s intentions regarding work were considered by the Tribunal. This information was put to the applicant in writing under s.359A of the Act. Within the time limited for response, the applicant provided submissions and documents in relation to those issues.
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 intends genuinely to stay in Australia temporarily.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal has had regard to all the information supplied to the Department of Home Affairs with the visa application, which is on the Departmental file provided to the Tribunal, and all the information supplied to the Tribunal by the applicant. In particular, the Tribunal notes the enrolment information received by the Tribunal on 15 May 2020, as well as the completed information form received by the Tribunal together with supporting documentation on 19 May 2020 and further submissions and supporting documentation received by the Tribunal on 23 November 2020.
Based on all of that information, the applicant’s circumstances may be summarised as follows:-
(a)The applicant is a 31-year-old citizen of Nepal who first arrived in Australia on 21 December 2014 as the holder of a Subclass 573 Student visa.
(b)The applicant has links in her home country in the form of her mother and brother. The applicant says she has regular contact with them through calls and messages, often contacting them daily.
(c)According to information contained in the information form, it appears the applicant has had the support of her parents for her education and generally for her financial support whilst in Australia.
(d)The applicant says her parents have worked hard and they have really done so many things to help with her upbringing.
(e)The applicant indicated in the completed information form that she had no concerns in respect to requirements for military service commitments or for political and civil unrest in the area of Nepal where her family lives.
(f)In Australia, the applicant claims she does not know very many people and was diagnosed with clinical depression before she could make friends or get in touch with community people.
(g)The applicant worked in Australia as a kitchen hand with AECC for approximately 9 months from December 2015 to September 2016. Additionally, it appears there was an application for work that the applicant made to the Ringwood Area Lions Aged Care Inc (RALAC) however, as will be discussed later in these reasons, that employment did not eventuate.
(h)As noted, the PRISMS records were sent to the applicant for her to make comment. Those records show that the applicant has had a total of 17 Confirmation of Enrolments (CoEs) issued to her. These range from enrolments in a Master of Education, a Master of International Politics, a Master of Business Administration, Certificate III and Certificate IV in Hairdressing and Diploma of Salon Management, Certificate III and Certificate IV in Commercial Cookery and Diploma of Hospitality Management and a Diploma of Business and a Diploma of Leadership and Management.
(i)Recently the applicant succeeded in obtaining a qualification in Certificate III in Commercial Cookery. The applicant has provided a testamur from her Registered Training Organisation (RTO) dated 3 May 2020 confirming fulfilment of the requirements for the issue of that Certificate III.
(j)The applicant has recently provided a record of attainment in respect of a number of competencies of the Certificate IV in Commercial Cookery dated 20 November 2020. More will be said of her education achievements later in these reasons.
(k)In regard to the applicant’s future intentions, the applicant indicated she intends working in the hospitality industry in Kathmandu which has hotels and restaurants and, after gaining experience, she has plans to open a restaurant of her own in her own residential locality in the country.
(l)Based on the information supplied by the applicant to the Tribunal in the information form and as noted in the movement records which were not challenged by the applicant, since her arrival in Australia on 21 December 2014, the applicant has departed on one occasion between 27 May 2018 and 14 September 2018, a total of 111 days. The applicant’s current studies, according to her CoE, will be completed on 14 June 2021.
(m)In the material the applicant has supplied to the Tribunal, she has given details of her knowledge of living in Australia and her courses of study and associated education providers.
(n)As to previous visas, the applicant has stated in her completed information form that she has not been refused any other visas (apart from the current visa for which this application relates) in either Australia or another country nor has she had a visa cancelled in Australia or another country. The applicant also indicated that she has not applied for any other visas for which a decision has not yet been made. The applicant has previously been granted 2 Student visas and associated bridging visas.
(o)Apart from dealing with issues of concern, which will be dealt with more fully later in these reasons, the applicant in her written material has not suggested there are any other matters which may relate to her genuine temporary entrant status in Australia.
In the course of considering the application, the Tribunal became concerned about several issues. As a result, the Tribunal wrote to the applicant by letter dated 9 November 2020 inviting the applicant to comment on or respond to information which the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. This was dealt with in accordance with s.359A of the Act.
The first of those issues concerned the applicant’s academic history. The printout of the PRISMS records showed the applicant had had 17 CoEs but there was no evidence of successful completion of any qualification before the Tribunal at the time the letter was written.
The applicant provided supporting documents and written submissions in relation to this issue and the other issues which will be canvassed later in these reasons.
In response to the number of CoEs, the applicant attributed this to her own indecisiveness caused by her anxiety and depression due to the external events that were beyond her control. She said she felt terrible remorse at having wasted years of her life, resources and talents without having achieved her goals. The applicant then went on to particularise some explanations for her situation.
The first of these explanations related to the fact that a number of courses that she undertook were package courses, that is to say a Certificate III, a Certificate IV and then a Diploma. The applicant said she would lose motivation and confidence and then would abandon the course and start a new one. This involved all courses in the package being cancelled, for instance at the Baxter Institute in 2016 when the applicant was studying a Certificate III in Hairdressing and was to pursue the Certificate IV in Hairdressing followed by a Diploma of Salon Management, the applicant had her trolley containing her training equipment and materials stolen from the classroom. Despite having reported the incident, the applicant said she did not receive any assistance in replacing the equipment. As she had no extra money to buy the materials, she decided to discontinue her studies.
Her explanation for studies at the Pax Institution was that she was not comfortable in the training environment. Another explanation was that at another institute there were conflicts with the delivery of training. At the AVETA Institute, for example, students from different courses were taught in the same room simultaneously which the applicant found to very distracting, haphazard and unfair. She also stated that after she was recovering from surgery and she was suffering mental and emotional issues she received no acknowledgment or help from her RTO.
The applicant attributes her long-term depression, anxiety, ill-health and indecisiveness from problems arising from her divorce and persecution, as the applicant terms it, by her former husband’s family if she were to go back to her home county. The applicant says the shame, stigma, blame and harassment placed on divorced women in her home country is different to western countries.
Further, the applicant said that she had major surgery in January 2018. This surgery involved gynaecological procedures including laparoscopy, ovarian cystectomy and oophorectomy. The applicant said that undergoing this surgery without any family or support from friends did not help her mental and emotional health and her recovery has been a long one with the emotional recovery presenting far greater difficulty than the physical recovery.
The next issue of concern put to the applicant was the state of her completion of her Certificate III. The document which had been supplied to the Tribunal by the applicant showed certain units of competency where the applicant was not yet competent, and also where assessment was continuing. In response, the applicant provided a testamur issued by her RTO confirming that she had fulfilled the requirements for her award of a Certificate III in Commercial Cookery. The applicant also provided 3 separate statements of attainment in respect of the Certificate IV in Commercial Cookery which was due to be completed on 14 November 2020. Together, those statements of attainment show that the applicant has completed 32 units of competency in the course. According to publicly available information on the National Register on Vocational Education and Training (VET), the course requires fulfillment of 33 units of competency. The applicant in her submissions received by the Tribunal on 23 November 2020 says that she has completed the course.
The next issue of concern raised with the applicant was information received in respect of employment with RALAC. This related to an approach by that organisation to the Tribunal on or about 26 June 2020 noting that the applicant had applied for work at their aged care for 40 hours per week but noted her inability to work in Australia (according to Visa Entitlement Verification Online (VEVO)) and accordingly the Aged Care service was seeking clarification from the Tribunal as to her ability to work because they did have work for her. The Tribunal was concerned such work, while not impossible to match with studies, was not particularly consistent with a person seeking to pursue study qualifications. In reply, the applicant stated that this was a miscommunication, because it was only her intention to work 20 hours per week and, in any event, it was not a full-time job as the organisation was employing casuals at that time. In any event the situation did not progress on the part of RALAC because of the then work rights listed for the applicant on VEVO. The applicant also pointed to the financial hardship which she was facing at the time due to the COVID-19 pandemic. Funding from her mother was becoming increasingly difficult and as an international student, the applicant was not able to access pandemic relief packages that were available to general members of the Australian public.
The last issue of concern was the fact that in the time the applicant had been in Australia (approximately 5 years and 10 months when the letter was sent to the applicant), she had only departed for 111 days on one occasion during that time. The concern that the Tribunal had was that this showed little incentive on the applicant’s part to return to her home country when the lack of academic progress during that time was also considered.
The applicant did not specifically address that query in her response. She did acknowledge that her record was far from flattering but that she was trying to better herself and had completed both her Certificate III and Certificate IV, and only had several months to go in order to complete her Diploma course.
As stated above, the key issue the Tribunal has to decide in this case is whether the applicant intends genuinely to stay in Australia temporarily. On that issue, the considerations set out in cl.500.212(a) of Schedule 2 to the Regulations govern the matters the Tribunal needs to consider.
In assessing whether an applicant meets the genuine temporary entrant criterion, the Tribunal must have regard to Direction No.69. As also noted above, that Direction is not to be used as a checklist but rather is intended to guide decision makers in considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
In adopting that process in this case, and having considered all the factors in the Direction, on the basis of which the Tribunal has made certain findings which are about to be set out, the Tribunal finds that some of those factors and findings based on those factors are not of such significance, importance, or materiality to its decision to tip the balance away from the view the Tribunal has taken of the applicant’s circumstances. This is not to suggest that those factors and findings based on those factors have been overlooked, but rather, the Tribunal, in considering its decision, has found these factors and findings of lesser weight in balancing all the factors and findings and coming to its decision overall on the merits of the review application.

Having had regard to the applicant’s evidence and submissions and her responses to the possible concerns raised by the Tribunal, as considered above, and giving consideration to all the factors specified in Direction No.69, the Tribunal makes the following findings:
(a)The applicant has stated that due to the lack of proper course structure in her homeland she has chosen to stay in Australia to undertake studies. The applicant refers to 3 colleges in Nepal offering catering and hospitality studies. The applicant stated that such courses were cheaper than Australian courses. The applicant said that she prefers quality to money because that is an important decision for her future. The applicant stated she could literally feel the difference in the course structure between the 2 countries. The course structure in her home country is a ‘sacrificial’ (sic) one and does not guarantee the job ready program. By contrast, the course structure in Australia is practical, handy and starts from basic to advanced level, which is necessary for the applicant to open her restaurant business. No evidence is presented to substantiate the applicant’s general claims relating to the education systems respectively in Nepal and Australia. In the absence of such evidence, at worst the Tribunal could regard the applicant’s bald assertion of quality difference as insufficient to establish reasonable reasons for not undertaking studies in her home country. At best, the Tribunal could regard the explanation is neutral towards the applicant. Overall, the Tribunal is not satisfied as to the applicant’s explanation for not studying in her home country.
(b)The applicant has links to her home country in the form of her mother and brother. There is, however, no evidence of her owning any property in her home country and there is only the vague statement of her intention to work in a hotel or restaurant in Kathmandu before opening her own restaurant in her own regional locality in Nepal. When this is considered in light of the length of time the applicant has been in Australia with limited return visits, her ability to remain in contact with her family through calls and messages, even on a daily basis, and her lack of academic progress, which will be discussed later, this does call into question in the view of the Tribunal the applicant’s incentive to return home. The Tribunal does acknowledge, however, that the applicant is suffering from anxiety and has produced medical evidence to that effect and also had significant surgery in January 2018, after which time the applicant returned home for a total of 111 days for recuperation. But balancing all those factors, the Tribunal has come to the conclusion that the conduct of the applicant speaks of a person who displays little incentive to return to her home country. Indeed, while it is a situation to be utterly deplored, the applicant speaks of the anxiety of being persecuted by her former husband’s family if she were to go back to her country and suffer shame, stigma, blame and harassment as a divorced woman. All these factors combine in the view of the Tribunal to a conclusion that there is not a significant incentive for the applicant to return to her home country, Nepal.
(c)As to economic circumstances in the applicant’s home country, the Tribunal notes that the applicant has spoken of the support that her family has given her. As a result, the Tribunal is prepared to find, when it considers the economic circumstance of the applicant in her home country, that these would not present a significant incentive for her not to return to her home country.
(d)There are no requirements for military service commitments affecting the applicant which would present a significant incentive for her not to return to her home country.
(e)There are no circumstances of political and civil unrest in the area where the applicant’s family are located in her home country, Nepal, which would present a significant incentive for her to not return to Nepal.
(f)In considering the circumstances in her home country relative to others in that country, the Tribunal finds that the applicant comes from a hard working family who have supported the applicant over her life, but otherwise does not make any other findings in that regard which are other than entirely neutral towards the applicant.
(g)The Tribunal accepts that the applicant does not have family or many friends in Australia. However, the applicant’s conduct in remaining in Australia for the length of time she has, the ability to maintain ready contact with her family in her home country, the fact that she is surviving here, the fact that her academic record shows lack of significant progress and indeed change of subject focus on 6 occasions from education to international politics, to business administration, to hairdressing, to catering and hospitality management, to business and then to leadership and management, and then back to catering and hospitality management again (which is actually 7 changes if the 2 attempts in the catering and hospitality suite of courses is separately counted), paints a picture, as far as the Tribunal is concerned, of a person with no significant incentive to return home but rather to remain here in Australia. Accordingly, the Tribunal concludes that the student visa program is being used to circumvent the intention to the migration program.
(h)For those reasons also, the Tribunal finds that the student visa is being used to maintain ongoing residence in Australia.
(i)Because there is no secondary applicant, it is unnecessary for the Tribunal to consider whether the applicant has contrived to enter a relationship for a successful student visa outcome.
(j)As to the applicant’s knowledge of living in Australia, her course of study and the associated education provider, the Tribunal is satisfied that the applicant has demonstrated sufficient knowledge in this regard.
(k)The applicant’s current course of study in catering/hospitality is not strictly consistent with the level of education with which the applicant came to Australia, being a Bachelor of Arts in English. The frequent change of course direction (on 6 or 7 occasions depending on whether the current course is counted once or twice) makes it difficult for the Tribunal to accept the applicant’s motives or demonstration of her being a genuine student. The Tribunal certainly accepts the mental difficulties the applicant has had but the level of progress in the time the applicant has been in Australia is not considered a satisfactory demonstration of a person being a genuine student.
(l)The applicant has stated that it is her intention to work in the hotel or restaurant industry in her home country and ultimately own her own restaurant. In that regard, therefore, undertaking catering and hospitality management studies is relevant to that stated intention.
(m)As to remuneration, the applicant has stated in the information form that as an employee in the hotel or restaurant industry in her home country she would expect to receive remuneration of the equivalent of $AU1000-$AU1500 per month. The difference in remuneration in her home country compared to Australia has not been addressed by the applicant in her material. Given other factors considered in these reasons, this particular factor and the lack of the applicant having addressed it in her material is not a factor of such significance or materiality that affects the Tribunal’s decision overall, and is one of those factors to which the Tribunal attaches lesser weight in its consideration overall of the applicant’s circumstances.
(n)At the time of decision, the applicant had been in Australia 5 years and 362 days during which time she had returned to her home country on one occasion for 111 days. Were she to remain to the conclusion of her proposed studies, calculating that to the last day of her course as per the CoE, namely 14 June 2021, she will have been in Australia for approximately 6 years and 178 days.
(o)As to previous visa applications for the applicant, but for the current visa under review, the applicant has successfully been granted 2 prior Student visas and associated bridging visas. There is no evidence to suggest any other visas she has applied for have been cancelled or that any other visas she has applied for have been refused.
(p)As to compliance with visa conditions, something should be said of this. From 12 April 2019 the applicant was a holder of a Bridging visa C, which had the attached visa condition 8101 which meant that the applicant was not entitled to work. As noted, there appears to be an application by the applicant to work at RALAC during the currency of this visa condition. This had the potential to call into question the applicant’s compliance with her visa conditions. However, shortly after on 6 July 2020 that visa condition was removed when the applicant was granted a Bridging visa A. The applicant’s explanation in respect to the work at RALAC was to the effect that work was not undertaken. Accordingly, there is no evidence upon which the Tribunal can be comfortably satisfied that the applicant has failed to comply with her visa conditions. Accordingly, the Tribunal does not so find.
(q)There is no evidence before the Tribunal that the applicant has travelled to any other country and there is no finding therefore that the Tribunal could make that the applicant has failed to comply with the migration laws of any other country.
(r)As noted, were the applicant to remain in Australia to the completion of her studies, just calculating that to the last day of her course, she will have been in Australia for approximately 6 years and 178 days. This is in circumstances where the Tribunal is concerned as to the numerous changes of subject matter of her courses, the fact that only very recently has she successfully completed any course (those being courses in total duration of 18 months out of all the time she has been in Australia). Additionally, there is the fact that the applicant can keep in contact with her family overseas easily by calls and messages, all of which lead the Tribunal to the conclusion that the use of the applicant’s student visa is primary for the maintenance of ongoing residence in Australia.
(s)As there is no child secondary applicant it is unnecessary for the Tribunal to make any findings with respect to the intentions of the applicant as a parent.
(t)There are no other relevant matters that bare upon the conduct as to the review of the applicant’s status as a genuine temporary entrant.
Balancing all those findings, the Tribunal considers that the weight of the evidence points more to those factors not favouring the applicant’s case rather than those factors which are supportive of her case. While the Tribunal has sympathy for the applicant’s mental health condition and concerns about treatment by her ex-husband’s family on return to Nepal, nevertheless, through that balancing exercise, weighing all the particular factors and the findings based on those factors, the Tribunal considers that those factors and findings based on those factors of materiality weigh more heavily to establish there is not a significant incentive for the applicant to return to Nepal and that the student visa is being used to maintain ongoing residence in Australia than do the other factors which are either neutral to or in the applicant’s favour.
Having regard to all matters, including the Direction No.69 requirements, to which regard is required, the Tribunal is not satisfied the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Conclusion on cl.500.212
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) Subclass 500 visa.
Robert Cumming
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 outcome, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2020] AATA 6100

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction