Hasan (Migration)

Hasan (Migration) [2022] AATA 1510 (7 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Mohammad Kamrul Hasan
Ms Tania Zaman
Ms Tahira Hasan
REPRESENTATIVE:  Mr Harshdeep Singh (MARN: 1577093)
CASE NUMBER:  2001163
HOME AFFAIRS REFERENCE(S):          BCC2019/4899291
MEMBER:David Barker
DATE:7 January 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 07 January 2022 at 12:57pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment status – genuine temporary entrant – Direction No 69 – circumstances in home country – limited travel home – economic circumstances – employment history in Australia – non-provision of taxation and banking records – potential circumstances in Australia – value of the course – study history – limited academic progression – immigration history – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 January 2020 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 30 September 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were not satisfied the applicant intends genuinely to stay temporarily in Australia for study purposes.
The review applicant was invited to appear before the Tribunal to give evidence and present arguments by teleconference on 18 November 2021. The Tribunal determined it was reasonable to hold a hearing through a teleconference in the context of the current coronavirus pandemic, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal was mindful of the need to minimise health risks to the parties and Tribunal staff that could arise at the present time in an in-person hearing. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by electronic means.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a national of Bangladesh and is 41 years old. The second named applicant, the spouse of the applicant, is 29 years of age and also a national of Bangladesh. She arrived in Australia in May 2017. The third named applicant, their child, was born in 2018 and has been onshore since the time of her birth.
The applicant first arrived in Australia in June 2007, as the holder of a Subclass 572 Student visa. He was granted further Subclass 572 visa in July 2007, October 2009 and August 2010. In March 2012 he was granted a Subclass 485 Temporary Graduate Work visa, valid until August 2013. The applicant was then, in August 2013, granted a Subclass 573 (Higher Education Sector) Student visa, which was valid until August 2017. Following on from this, the applicant was granted a Subclass 500 Student visa in October 2017, which was valid until 30 September 2019.
Information provided by the applicant at hearing indicates that since his arrival in 2007 he completed a Certificate IV at the end of 2009[1], but that following on from this he did not proceed to study a diploma course, or complete a subsequent Bachelor of Engineering (Mechanical) degree in which he had enrolled. The applicant reported that he has recently completed a Bachelor of Engineering Technology (Civil), to which he had switched from the mechanical engineering course. This is not entirely consistent with the Provider Registration and International Student Management System (PRISMS) records, which, whilst showing the applicant did, in June 2021, finish a Bachelor of Engineering that he initially commenced in July 2013, also show that he finished other courses he had been enrolled in. The Tribunal is aware that PRISMS records can be inaccurate and, with respect to this factor, prefers the evidence provided by the applicant, but does note the Department file contains evidence of the completion of courses, which the Tribunal takes to be components of either the incomplete mechanical engineering course or the recently completed Bachelor of Engineering Technology (Civil) program.
[1] A statement of completion for a Certificate IV in Business (Marketing) was provided in association with the visa application. The Tribunal has inferred the applicant did not continue to study a Diploma of Business (Marketing). Other courses which appear to have been completed by the applicant include: Certificate III in Engineering (Mechanical); Diploma of Engineering (Mechanical Technology); Advanced Diploma of Engineering and Technology, Associate Degree Engineering Technology (Civil).
At the time of application for the Subclass 500 Student visa, which is the focus of the current review, the applicant was seeking to complete the Bachelor of Engineering course. The Statement of Purpose (SoP) submitted with the application emphasises the applicant’s intention to return to Bangladesh upon completion of the Bachelor of Engineering.
On 18 November 2019 the Department sent the applicant a natural justice letter inviting his comment on what was perceived to be unfavourable information relevant to his application for a further student visa. The salient information the Department suggested was unfavourable is as follows:
You Arrived in Australia on 02 June 2007 as the holder of a subclass TU-572 to undertake a Diploma of Engineering Technology due for completion 30/06/2009. Since your initial arrival you have accumulated almost 12 years onshore on various temporary visas. You are now seeking to extend your stay by a further 18 months which will bring your time spent onshore to approximately 13.5 years.
Furthermore you are accompanied by your spouse, and your child who was born onshore, which brings into question your ties to your home country and incentive to return there.
In order to meet the Genuine Temporary Entrant criteria you are required to demonstrate that you intend to remain in Australia on a temporary basis and will return at the end of your stay.
Given the time you are seeking to remain in Australia and that you have not demonstrated the value of this study to your future, there are concerns you may not be a genuine temporary entrant.
In the applicant’s response, dated 16 December 2019, to the natural justice letter, he, amongst other things, stated that his ‘only purpose for staying in Australia is getting a quality education and to complete my Bachelor of Engineering Technology (Civil). I assure you that once I complete my degree, I will return to my home country as countless career opportunities are on offer in booming construction industry of Bangladesh’.
A copy of the delegate’s decision record was provided with the review application. Information from and concerns arising with this document, where relevant, are discussed in the following sections of this decision.
Prior to the hearing the Tribunal received documentary evidence including:
·Evidence of the applicant’s identities;
·Completed Request for Student visa information under s 359(2) of the Act;
·Representative submissions, dated 18 August 2021;
·Evidence of enrolment and progression in previous courses;
·Confirmation of Enrolment (CoE) – Master of Engineering Management, commencing 13 September 2021 and finishing 27 August 2023;
·Course information - Master of Engineering Management, Torrens University;
·Reference regarding applicant from Md Aftabuzzaman, Melbourne Polytechnic, dated 12 August 2021;
·Reference regarding applicant from Dr Mohammad Khan, Melbourne Polytechnic, dated 14 August 2021;
·Evidence of assets and liabilities held by Mohammad Ismail Hossain on 16 August 2021;
·Account statement of investment account in the applicant’s name, dated 25 March 2007;
·Succession Certificate regarding estate of Mohammad Ismail Hossain;
·Financial sponsorship affidavit and letter regarding financial support for the applicant from his uncle, Mohammad Din.
Information provided by the applicant indicates that since arriving in Australia in June 2017:
·    He has returned to Bangladesh on four occasions for a cumulative period of 175 days [5.73 months];
·    He has held casual employment as a cleaner, machine operator, supervisor of cleaners or building maintenance supervisor as follows:
a.   Capital properties services – cleaner – August 2007/August 2010;
b.   Sleepwell Bedding Industries – machine operator – 2008/2010;
c.   Mutual Cleaning services – cleaner – November 2010/November 2012[2];
d.   Glad group – supervisor – May 2013/September 2015;
e.   Menzies Group – supervisor – October 2015/November 2017;
f.    National health and age care services – cleaner – December 2017/January 2019;
g.   Facilities first – cleaner – February 2019/2021;
h.   Self-employed cleaner – August 2016/2021.
[2] Position held whilst the applicant was on a Subclass 485 Temporary Graduate Work visa.
The Tribunal provided the applicant with three weeks following the hearing to provide further evidence in support of his claims, including information to support his claim to have participated in counselling in response to mental health difficulties following the death of his father and evidence as to his savings and income earnings. On 9 December 2021, the Tribunal received a partial record, dated 14 March 2016, of a Victoria University – Monitoring unsatisfactory student progress – progress meeting work plan. In association with this partial record, the Tribunal received an email from the applicant’s representative indicating the applicant was unable to provide the other required documents. No further evidence or submission has since that date been received from the applicant.
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 meets required enrolment and genuine temporary entrant criteria.
Enrolment
Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl 500.211(a). The applicant does not claim to meet any of the alternative criteria in cl 500.211.
‘Course of study’ is relevantly defined in cl 500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in reg 1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000 (Cth), to provide the course to overseas students.
Information provided by the applicant at hearing indicates that he has completed a Bachelor of Engineering Technology (Civil) at Melbourne Polytechnic and commenced a Master of Engineering (Management) from Torrens University, which will finish in August 2023. The Tribunal has been provided with a CoE in the Master of Engineering (Management) and on this basis is satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl 500.211 is met.
Genuine applicant for entry and stay as a student
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 relevance of circumstances in the applicant’s home country
The Tribunal considered whether the applicant has sound reasons for not undertaking the study in his home country or region if a similar course is already available there. In relation to this factor the applicant did not give evidence at hearing, but in information provided prior to the hearing, claimed a Master of Engineering (Management) course was not available in Bangladesh. The Tribunal is unaware of the availability of this type of course in the applicant’s home country and has taken this claim at face value.
The Tribunal considered the extent of the applicant’s personal ties to their home country and whether they would serve as a significant incentive to return to their home country. The applicant has indicated his father died in the period in which he has resided in Australia. He has given evidence that his mother and brother continue to reside in his home country. The Tribunal accepts this claim. The applicant claims he is required to return to Bangladesh to support his mother. Given his brother resides in India and the applicant has now resided in Australia for the past 14 years, it is unclear to the Tribunal why, if this was the case, this factor would not have provided a clear incentive for the applicant to return to his home country before now, for instance upon completion of the Bachelor of Engineering degree, which provided the basis of his recent student visa applications.
The Tribunal acknowledges the constraints upon international travel for a significant period following the onset of the COVID-19 pandemic and the extent to which they have impacted the applicant ’s capacity to visit relatives in his home country. However, given the overall amount of time the applicant has resided in Australia since 2007, the Tribunal is not persuaded the number of return trips and the cumulative period he has spent in Bangladesh since June 2007 is reflective of a person maintaining the sort of ties which would appear to provide a strong incentive for him to return there. The Tribunal considers this to be particularly the case in the circumstances of this case, where the applicant is accompanied in Australia by his spouse and child.
The applicant claims he will, in conjunction with two siblings, inherit property and financial assets from his deceased father’s estate. It would appear that these assets are currently held by the applicant’s mother, and whilst the Tribunal acknowledges a portion of them will at a future time be passed on to the applicant, it is not persuaded such potential future assets provide him with a strong incentive to return there at the present time.
The applicant’s representative’s submissions drew the attention of the Tribunal to a Mudaraba Millionaire Deposit saving scheme, which he suggests the applicant has opened in Bangladesh and into which he deposits money, and which represents an economic incentive for the applicant to return to his home country. Whilst the Tribunal accepts the applicant could remit funds from income earned in Australia to an account held with a financial institution in an offshore location, the Tribunal is not persuaded this would negate an incentive to maintain residency in a country such as Australia, where his income earning potential is significantly higher than it is from comparable jobs in Bangladesh that his Australian employment experience has equipped him to seek. A review of the translated copy of the Mudaraba Millionaire Deposit Account indicates that it is an account in the name of the applicant, but contrary to the suggestion this account was opened by the applicant, it was opened and operated by his parents in March 2007, prior to the applicant’s arrival in Australia. The Tribunal notes that as of 16 August 2021, the balance in this account was approximately $6,163.49[3].
[3] Account balance listed in auditor’s statement of assets and liabilities of the applicant’s deceased father.
As to economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country, the Tribunal considers the applicant’s employment history in Australia to potentially provide such an incentive. He has worked on a consistent basis since arriving in 2007, and since 2016 both as an employee and as a self employed cleaner. In discussion of this issue at hearing, the applicant conceded that as a cleaner his earnings in Australia were higher than he would earn for equivalent work in Bangladesh but contended, given the status of his family, he would not seek this sort of employment in his home country. The applicant refuted the suggestion that his income earning potential in Australia could provide him with a reason for seeking to maintain his residency here and agreed to provide the Tribunal with copies of notice of assessment from the Australian Taxation Office and account statements from bank accounts he is operating in Australia to support this claim. The Tribunal explained that the information was requested to assist consideration as to whether the applicant has an economic incentive for seeking to maintain residency in Australia.
The Tribunal consented to the applicant’s request for three weeks to provide this and other additional evidence in support of his claims. Unfortunately, the applicant has not provided the requested taxation and banking records, or an adequate explanation for failing to do so. The Tribunal has drawn an adverse inference from the non provision of this evidence and is not persuaded the applicant’s claims, at hearing or in his response to the s 359(2) request sent to him prior to the hearing, as to income earnings in Australia not providing an incentive to maintain residency, are supported. After considering the information which is available and the applicant’s failure to provide requested information, the Tribunal is concerned that the applicant’s income from employment in Australia provides him with an incentive to maintain his residency in Australia.

There is no evidence before the Tribunal that would demonstrate the applicant’s employment history in Bangladesh provides him with an incentive to return there. His discussion of his future career prospects reflects employment or business aspirations based on study he has undertaken since coming to Australia, rather than upon consolidating a career he had established prior to his departure from Bangladesh. His employment experience in Australia has predominantly been in fields that he has indicated he would not seek further work in upon return to his home country.
In relation to the overall evidence regarding the relevance of circumstances in the applicant’s home country, the Tribunal accepts he has relatives there but beyond this, he does not present with a history of employment in Bangladesh or have economic assets of significance in his own name which provide an apparent incentive for him to return there.
With regard to military service commitments that would present as a significant incentive for the applicant not to return to his home country, there is no evidence before the Tribunal which would suggest the applicant has military service commitments in Bangladesh, or concerns about political or civil unrest there which would provide him with an incentive to not return to his home country.
With regard to the applicant’s circumstances in his home country relative to the circumstances of others in that country, the applicant gave evidence that he comes from an economically secure middle-class background. I have regard to the available evidence about the applicant’s circumstances in Bangladesh relative to the circumstances of others in that country, and I am satisfied that there is no evidence to suggest that this demonstrates the applicant has a clear incentive to not return there.
The relevance of the applicant’s potential circumstances in Australia
As previously discussed, the applicant’s spouse and child reside with him in Australia. He also has a sister who, like the applicant, resides in Melbourne, Victoria. The applicant denies having a close connection to his sister. The Tribunal accepts this may be the case, but finds that when considered on an overall basis, the presence of his spouse and child constitutes a significant source of onshore support and familial connection.
As to whether there is evidence that the student visa programme is being used to circumvent the intentions of the migration programme, the Tribunal has unresolved concern that this is the case and that the applicant has had an economic incentive for seeking to maintain his residency for reasons other than study. When invited at hearing to respond to concern that his employment history appears to reflect the priority he has put upon income earnings, the applicant contended that his background in Australia has purely consisted of study. He gave evidence that his spouse does no paid employment and that he has not worked much during the time he has been in Australia since 2007. The Tribunal is not convinced by this claim and, as discussed, has placed adverse weight on the applicant not providing requested taxation and savings information which may have supported his claims.
At hearing the applicant contended that, if the time he has spent back in Bangladesh is taken into account, it is apparent that he has not worked all of the time. The Tribunal acknowledges that the applicant has not earned an income during the near six months he has not been onshore since 2007. However, the Tribunal is not persuaded this amounts to a significant period when weighed against the periods the applicant has worked in paid employment. The Tribunal notes that the applicant continued to work during periods he claims that his reaction to the death of his father and other psychosocial stressors compromised his ability to study. Whilst acknowledging work tasks associated with cleaning and the other types of work undertaken by the applicant require different capacities to those associated with tertiary study, the Tribunal is nonetheless satisfied the applicant has maintained a focus on working in paid employment whilst he has been in Australia. The Tribunal has placed some weight on this factor and also that the applicant continued to work as a cleaner whilst on the Subclass 485 visa, rather than working in a field which would potentially have provided him with experience in the engineering field, which he contends is the basis of both his reason for seeking an education in Australia and his future career aspirations. The Tribunal has the view that the intention of the temporary graduate work visa scheme is to provide the opportunity for an overseas national to consolidate skills gained through study in Australia. The applicant instead worked in an unrelated vocational arena, where he subsequently sought self-employment, and in the view of the Tribunal, this does not reflect the intention of that visa scheme and gives rise to a concern as to whether income earnings provide the applicant’s incentive for maintaining residency in Australia.
As to whether the student visa is being used to maintain ongoing residence, the Tribunal does have concerns that the applicant is seeking to use the student visa programme for this purpose. In making this finding, the Tribunal has placed weight on the length of time the applicant has now spent in Australia on temporary visas. In the Tribunal ’s view, the applicant has not provided a persuasive reason as to why he has not acted on past assurances that he would, after completing a Bachelor of Engineering degree, have adequate qualifications to return to his home country and embark on his chosen career path.
With regard to whether the applicant has entered into a relationship of concern for student visa purposes, the Tribunal has placed no weight on this factor as there is no evidence to demonstrate the applicant has entered into any such relationship of this sort.
With regard to the applicant’s knowledge of living in Australia, the Tribunal is satisfied that through residing here for over 14 years, he has a sufficient understanding of Australian society to undertake the proposed further period of study.
The value of the course to the applicant’s future
The applicant now holds a Certificate IV in Business (Marketing), Certificate III in Engineering (Mechanical); Diploma of Engineering (Mechanical Technology); Advanced Diploma of Engineering and Technology, associate degree in Engineering Technology (Civil) and a bachelor’s degree in Engineering Technology (Civil). At hearing he emphasised that he wants to now get the skills and qualifications in project management that the Master of Engineering (Management) will provide him. He contended that this will greatly enhance his future prospects in Bangladesh, given the booming nature of the economy and construction industry there. He contends that he will be able to start his own construction business, have the required knowledge to manage any engineering project successfully, or get work in jobs such as: Senior Engineering Manager, Engineering Manager, Chief Technical/Technology Officer, Technology Advisor, Operations Manager, or Production Manager[4].
[4] Representative submissions – dated 18 August 2021, applicant s 359(2) response and oral evidence at hearing.
The Tribunal has reviewed the course material and information regarding the economy in Bangladesh and acknowledges that in general, a relevant master’s degree may enhance a person’s job or business prospects. The Tribunal also acknowledges educational standards may be higher in Australia than in the applicant’s home country.
In light of the applicant’s lack of actual work experience in the civil engineering or related engineering or construction industry sector, the Tribunal is not persuaded the pursuit of a further post graduate qualification, which will further delay the applicant seeking employment, will necessarily assist him achieve the employment and business goals that he aspires to. In forming this view the Tribunal is not persuaded the applicant’s predominant work experience as a cleaner is relevant to either his vocational study pathway whilst he has been in Australia, or his stated future employment and business goals. The Tribunal acknowledges the applicant’s contention that working as a supervisor of a team involved with building maintenance is relevant to some aspects of engineering and building construction, but notes that the period his employment history indicates he worked in such roles does not reflect either the majority of the work or the recent work he has undertaken in Australia.
In relation to whether the applicant’s study history demonstrates satisfactory academic progression, the Tribunal notes the references provided by lecturers from his Bachelor of Engineering Technology course and gives weight to this evidence. The Tribunal is also satisfied that there is progression over time in the courses undertaken by the applicant from vocational to higher education sector levels. The Tribunal does, however, consider the overall length of time the applicant has held student visas to be of some concern, as is his not availing himself of the opportunity, whilst on a graduate work visa, to consolidate course material through relevant work experience. The Tribunal considers the applicant’s claim that he was, for a considerable period unable to cope with his studies due to emotional and psychological difficulties associated with the loss of his father and his marital difficulties, not supported by credible evidence. With respect to this factor, the Tribunal considers it unfortunate the applicant has not provided requested medical or other health professional evidence to support this claim. The Tribunal has reviewed the extract from a 2016 document from Victoria University regarding the applicant’s unsatisfactory student progress, but this extract provides no insight into the cause of the unsatisfactory progress. The Tribunal is of the view that unsatisfactory progress can be caused by a range of factors, some unavoidable and some a matter of choice and reflective of the priority a student places on making academic progress.
Considering these concerns, the Tribunal finds in the particular circumstances of this case, there is limited academic progression for the applicant’s period of stay in Australia.. Whilst acknowledging the applicant was for some of this period on a graduate work visa, he was not precluded from study during that time. The Tribunal has concerns that the applicant’s enrolment in a master’s degree reflects a pattern associated with persons seeking to maintain residency for reasons other than study.
With regard to remuneration, the applicant could expect to receive in his home country or a third country, compared with Australia, using the qualifications to be gained from the current course of study, I am not persuaded the evidence demonstrates that his proposed study will significantly enhance the remuneration he could expect over and above the expectations he has based on his existing qualifications and employment history.
The applicant’s immigration history
The Tribunal is aware an applicant’s immigration history refers both to their visa and travel history. There is no evidence that the applicant has had any previous visa refusals from Australian immigration authorities, but he has acknowledged that he was refused a student visa by the United Kingdom when he sought one in 2005. The Tribunal is unaware of the reasons for this visa refusal and has not attributed negative weight to it. The Tribunal accepts there is no evidence to establish the applicant has not complied with visa conditions during the time he has resided in Australia.
Conclusion upon genuine temporary entrant criterion assessment
In making a decision in the particular circumstances of this matter, the Tribunal has considered all the available evidence, including that the applicant is currently enrolled in a Master of Engineering (Management) degree. However, for the reasons outlined above, I do not accept the applicant is undertaking the current study for reasons other than his wish to maintain the residency of himself and his spouse and child in Australia. I find the applicant has an economic, rather than study incentive for wishing to maintain residency in Australia. The Tribunal is not persuaded the applicant is a genuine applicant for entry and stay as a student but rather is using the student visa programme as a pathway to maintaining residence in Australia. The Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
Having considered the applicant’s claims against all the factors specified in Direction No.69, and considering relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion.
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.
As the Tribunal has determined the applicant fails to meet an essential criterion for the grant of the visa, it has not considered other criteria for a Subclass 500 Student visa.
The second and third named visa applicants
As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the second and third named visa applicants are unable to meet the criteria because they are not a member of the family unit of, and have not made a combined application with, a person who satisfies the primary criteria in cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of Subclass 500 (Student) visas are not met. The applicants do not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
David Barker
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;
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.
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.

[2022] AATA 1510

7 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal