Imran (Migration)

Imran (Migration) [2023] AATA 306 (15 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Muhammad Imran
Ms Hamnah Imran
Mrs Faiza Imran
CASE NUMBER:  2211584
HOME AFFAIRS REFERENCE(S):          BCC20196344749
MEMBER:Michael Biviano
DATE:15 February 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 15 February 2023 at 12:35 pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit and Family Court remittal – genuine temporary entrant – migration, study and work history in third country and Australia – long stay in Australia with no return visits, multiple short, lower-level courses and changes of subject areas – long gap in study because of COVID pandemic and death of father – current course overlaps with some previous courses – no academic progression or clear benefit to future career – current work in brother’s business provides high level of income – members of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212(a), 500.311
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 17 February 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 28 November 2019. At the time of application, Class TU contained 2 subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the reason that he was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily.
The delegate also refused to grant the visas to the secondary applicants, being the applicant’s spouse and child, as the applicant had not met the requirements of cl 500.212 of Schedule 2 to the Regulations, as the secondary applicants, did not meet the requirements of cl 500.311 of Schedule 2 to the Regulations, and they did not meet the criteria for the grant of a student visa.
The Tribunal made a decision on 25 January 2022 in relation to the applicant’s review application, affirming the delegate’s decision. The applicant appealed that decision to the Federal Circuit and Family Court of Australia.
On 27 July 2022, the Court made orders which, inter alia, provided:
1.That the decision of the Tribunal made 25 January 2022 be quashed; and
2.The Tribunal to determine the application made to it for a review of the decision made by the delegate.
In accordance with the orders, the review application was remitted back for determination by the Tribunal. A further hearing was scheduled before the Tribunal.
The applicants appeared before the Tribunal on 18 January 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making the relevant facts of the individual case must be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
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 was a genuine applicant for entry and stay as a student.
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 applicant is a 40 year old Pakistani National who first came to Australia on 28 November 2011. He entered Australia after obtaining an initial student visa for the purposes of studying a suite of businesses courses including a Diploma and Advanced Diploma of Business.
The Decision Record of the delegate of the Department of Home Affairs dated 17 February 2020 which was provided to the Tribunal by the applicant confirms that the applicant made the application for a student (Class TU Subclass 500) visa on 28 November 2019 (Decision Record). Further the Decision Record confirmed that the applicant had previously completed a Bachelor of Commerce in his home country and that he had not returned home during his stay in Australia since arriving here on 28 November 2011. The Decision Record set out the reasons for the visa refusal and confirmed that the applicant was wanting to undertake an Advanced Diploma of Leadership & Management which would extend his stay in this country for a period of in excess of 10 years on temporary visas.
On 16 November 2021, the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student visa information about the courses he was studying and information about his entry and stay in Australia in accordance with s 359(2) of the Act (the Response).
In addition to the Response the applicant filed with the Tribunal:
a.Passport extract for the applicant’s daughter and spouse who are the secondary applicants and for the applicant himself;
b.Email from the applicant dated 6 March 2020 confirming that his surname had been incorrectly typed in the AAT review application and requesting it be amended;
c.Confirmation of enrolment (COE) No. C8D84394 for the applicant to study a Diploma of Leadership & Management at Greenwich Management College with a course start date of 1 November 2021 and a course end date of 28 November 2022 which was created on 15 October 2021;
d.COE No. C8D84718 for the applicant to study an Advanced Diploma of Leadership & Management at Greenwich Management College with a course start date of 31 October 2022 and a course end date of 27 October 2023 which was created on 15 October 2021.
On 25 January 2022 the matter proceeded to a hearing before this Tribunal whereby the Tribunal affirmed the decision of the delegate. The applicants appealed the decision of the Tribunal to the Federal Circuit and Family Court of Australia (Division 2). On 27 July 2022 the Court made orders issuing a writ of certiorari to the AAT quashing the decision of the Tribunal dated 25 January 2022 and also issued a writ of mandamus to the Tribunal requiring it to determine the application for review according to law.
The matter was re-listed and heard before this Tribunal on 18 January 2023. The applicant did not file any further documents in support of his application. The Tribunal has considered the applicant’s evidence to the Tribunal and documents submitted to the Tribunal and the Department in support of his application.
Prior to coming to Australia the applicant had completed his secondary schooling in Pakistan and had undertaken a Bachelor of Commerce at the University of Punjab. After completing university, the applicant moved to Ireland to work. The applicant gave evidence that in 2003 he had obtained employment as a kitchenhand at the Spur Steakhouse in Ireland for a period of 4 years and then he worked as a kitchenhand at Eddies Rocket for a period of 3 years, which was also in Ireland. Having completed those roles he worked in security and returned back to Pakistan in 2011. The applicant confirmed that he had stayed in Ireland from 2003 to 2011 and claimed that he had returned home on 3 occasions during that stay in Ireland.
The applicant married in September 2011. He gave evidence that he was in Pakistan for a period of 3 to 4 months for his wedding and was enjoying married life.
The applicant confirmed in evidence that he arrived here in Australia on 28 November 2011 having obtained a student visa to undertake studies including a Diploma and Advanced Diploma of Business. When questioned why he would undertake business studies having already completed a Bachelor of Commerce, the applicant claimed that the Bachelor of Commerce in Pakistan did not equate to the level of studies at Diploma and Advanced Diploma level here in Australia. He further claimed that the courses he was undertaking here in Australia at that Diploma and Advanced Diploma level were such that he thought it would assist him in getting a job back in Pakistan and that he undertook those courses with the purpose of assisting him in obtaining employment back home.
The applicant both in the hearing and in the Response outlined his study history in Australia as:
a.From the end of 2011 the applicant studied a Diploma of Business at Cambridge International College which he did not complete.
b.From 12 June 2012 until 12 August 2013 the applicant studied and completed a Certificate III in Engineering – Fabrication Trade at Education Access Australia Pty Ltd (EAA).
c.From 13 August 2013 to 11 February 2014 the applicant studied a Certificate IV in Business at EAA.
d.From 13 February 2014 to 12 August 2014 the applicant studied and completed a Diploma of Management at EAA.
e.From 15 September 2014 to 11 September 2015 the applicant studied a Certificate III in Commercial Cookery at the Victorian Institute of Culinary Arts & Technology (VICA).
f.From 14 September 2015 to 11 March 2016 the applicant studied and completed a Certificate IV in Commercial Cookery at VICA.
g.From 14 March 2016 to 29 July 2016 the applicant studied and completed a Diploma of Hospitality at VICA. From 1 August 2016 to 16 December 2016 the applicant studied and completed an Advanced Diploma of Hospitality at VICA.
h.From 19 December 2016 to 16 December 2017 the applicant studied and completed an Advanced Diploma of Marketing at VICA.
i.From 18 December 2017 to 13 January 2018 the applicant studied and completed an Advanced Diploma of Hospitality Management at VICA.
The applicant gave evidence that he had obtained a Temporary Graduate (Subclass TR485) visa in or about June 2018 for a period of 1½ years. During that time the applicant worked on a full-time basis as a chef earning approximately A$43,000 per annum. The applicant’s Temporary Graduate visa expired on 28 November 2019 and the applicant applied for a student visa to study a Diploma of Leadership & Management and Advanced Diploma of Leadership & Management at the National College of Information Technology (NCIT).
The applicant in evidence confirmed having commenced the courses, he did not complete them and ceased studying in March 2020 due to the COVID-19 pandemic. The applicant did not provide any documentation in support of such studies. The applicant claimed he ceased studies for the following reasons:
(1) due to the COVID-19 pandemic he was uncertain as to what was going to happen;
(2)he did not wish to undertake studies online and preferred to undertake studies in person;
(3)he claimed he was not mentally up to study as his father had passed away in July 2020 which resulted in him being mentally unable to undertake study.
Whilst the Tribunal accepts that the death of the applicant’s father coupled with the advent of the COVID-19 pandemic provides for an excuse for a short break in studies of a few months, the Tribunal does not accept that it would provide a reasonable basis for not undertaking studies at all from March 2020 until October 2021 when the applicant enrolled in a Diploma of Leadership & Management and Advanced Diploma of Leadership & Management at Greenwich Management College. The applicant did not produce any documentation such as medical reports or any other documents supporting that he was unable to take studies during this time.
The applicant has since October 2021 been studying the Diploma and Advanced Diploma of Leadership & Management which is expected to conclude on 27 October 2023.
The Tribunal notes that the applicant has been in this country for 11 years and 2 months on temporary visas which is an extraordinarily long period of time in circumstances where he has only studied short vocational education training (VET) courses and not undertaken any studies at the higher education level.
The Tribunal considers that the applicant’s current course of studies, the Diploma of Leadership & Management and Advanced Diploma of Leadership & Management, in many respects repeats studies that have already been taken by the applicant whilst in this country. The applicant whilst in Australia has already completed 3 Advanced Diplomas together with 3 Diplomas and 4 Certificates. One of the Diplomas that has been completed is a Diploma of Management. The applicant has also completed an Advanced Diploma of Hospitality Management. When one considers the courses he is now studying in Leadership & Management that is a substantial degree of overlap. It is unclear why the courses that the applicant is currently undertaking are beneficial to his future career. He has already completed courses in hospitality management which would be suitable for him to return back to Pakistan to work either in a 5-star restaurant hotel or alternatively setting up his own business.
The applicant had in the Response indicated he was looking forward to establishing his own restaurant and have a chain of restaurants but in evidence confirmed that his intentions had changed and he intends to go back and apply for a job as a chef in a high level restaurant back in Pakistan. In such circumstances it is unclear why the applicant requires to undertake further studies in an Advanced Diploma of Leadership & Management. The applicant in evidence explained that he was undertaking the course to freshen up his qualifications and knowledge. The Tribunal does not accept that explanation especially in circumstances where he had only completed an Advanced Diploma of Hospitality Management in 2018, which is recent and he could have freshened up his skills and knowledge by undertaking short courses.
The applicant has changed his career path initially from Commerce and Business to Engineering Fabrication & Trade, to Management, to Commercial Cookery, to Hospitality and Hospitality Management, to Marketing and now back to Leadership and Management. The courses are not connected to each other and all of them are not complementary to each other. They do not lead to a career path or position in employment. The Tribunal notes that the applicant has expressed the view he wishes to work as a chef and having completed Commercial Cookery, Hospitality and Hospitality Management qualifications he has based on those sufficient qualifications to work in that position and in that field. The applicant is currently undertaking an Advanced Diploma of Leadership & Management which does not appear to assist him in his endeavours and appears to be somewhat repetitive having regard to the studies he has already completed. The courses he is undertaking do not appear to constitute a change in career direction but appear to constitute a change in studies to extend his stay in this country for the purposes of residing here which is inconsistent with the purpose of the visa.
The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However this is not the case when an applicant has merely decided to change careers through undertaking short VET courses. In this particular case the applicant whilst in Australia has studied and undertaken 12 courses all of which are VET courses. Further the course that he is currently undertaking, being the Advanced Diploma of Leadership & Management, does not represent a change to his study and career pathway. It is merely undertaking a course to extend his stay here having already completed various management qualifications whilst in Australia. Furthermore, the course the applicant is undertaking at the moment is at the Advanced Diploma level and the applicant has previously completed 3 Advanced Diplomas in Australia and a bachelor’s degree in Pakistan. The course he is currently studying is at the Advanced Diploma level and does not reveal academic progression. In those circumstances his current studies are inconsistent with his level of education.
In light of the above circumstances the Tribunal does not accept that the change to his study pathway is reasonable in the circumstances.
When questioned about whether there were other similar courses he could study back home in Pakistan the applicant gave evidence that he had completed his studies back home in Pakistan 20 years ago but preferred to study in Australia as the Australian qualifications were more valuable. In the Response he outlined as follows:
There are not the similar courses as such because the quality, experience and information gained here in Australia is much more advanced and detailed with experience you can say ‘exceptional’. What I gain here is valuable, in terms of gained knowledge from the education and the experience for myself to take back to my home country where I will utilise the skills and informed gained from my Australian studies.

Whilst the courses in Australia may be at a higher level the Tribunal does not accept he could not undertake a management course back home if it was so valuable for his future endeavours. Moreover the applicant has previously completed 4 Certificates, 3 Advanced Diplomas and 3 Diplomas in Australia and a Bachelor of Commerce back in Pakistan. In such circumstances the Tribunal does not accept that in light of his previous qualifications that he has a reasonable motive for undertaking studies here in Australia.
The Tribunal notes that the applicant has lived in Australia for the last 11 years and 2 months and he has a substantial degree of knowledge about living in Australia. He has studied at Greenwich College since November 2021 undertaking Leadership and Management courses. Having regard to the studies he has completed the Tribunal accepts that he has a substantial degree of knowledge about the course and the provider.
The applicant in the Response outlined that he had had various jobs whilst in Australia including casually working on and off as a taxi driver and then working in various duties between 2011 and 2015 as a bakery chef together with various roles as a chef at restaurants such as The BBQ Lounge, Sforno Pizzeria, Dusa Darbar from August 2019 to November 2019 and as a chef at Desi Cuisine from July 2021 as a chef. The applicant in evidence confirmed that the level of income he was receiving from Sforno Pizzeria, Dusa Darbar and Desi Cuisine was around A$43,000 per annum. Such level of income is a high level of income which would provide the applicant with a substantial financial incentive to remain here rather than to return home.
The applicant in evidence confirmed that the level of income in Australia is substantially higher than that in Pakistan which would also provide the applicant with a substantial financial incentive to remain here rather than to return home.
The applicant also gave evidence that the economic conditions in Australia were also more favourable than those in Pakistan which would also present a significant incentive for him to remain here rather than to return home. The applicant confirmed both in the Response and in evidence he has not returned home since his arrival in Australia in 2011. Furthermore he has not travelled to any other country during his stay in Australia. Notwithstanding there were travel restrictions imposed by reason of the COVID-19 pandemic from March 2020 until the commencement of 2022, the Tribunal finds that the applicant’s total failure to return home since 2011 is consistent with the applicant wanting to remain here on a permanent basis and not to return home.
The Tribunal notes that the applicant’s circumstances in his home country were that before coming to Australia he had lived and worked in Ireland for a period from 2003 to 2011 when he married back in Pakistan. Over the last 20 years the applicant has only lived in Pakistan for a period of 3 to 4 months other than some short visits home when he was living in Ireland. The long period of time that he has lived away from Pakistan is inconsistent with an applicant wanting to return home to Pakistan, and more consistent with an applicant wanting to remain in Australia.
The applicant at the hearing was asked whether or not he intended to apply for permanent residency at the completion of the Advanced Diploma of Leadership & Management. The applicant claimed that he was unsure whether he would and stated that he did not believe there was anything wrong in applying for permanent residency. However he stated that it was his intention on completing the Advanced Diploma of Leadership & Management to return home and apply for a job as a chef and that he wanted to undertake studies in the Advanced Diploma of Leadership & Management to freshen up his qualifications and knowledge. As discussed above it is unclear how undertaking an Advanced Diploma of Leadership & Management will refresh his study skills in working as a chef back in Pakistan.
The applicant in evidence confirmed that he does not have any assets either here in Australia or back in Pakistan. In the Response he claimed that his mother has a house and agricultural land which will be subsequently divided amongst his brothers after his mother passes. In such circumstances the Tribunal considers that as the applicant does not have any assets in his own name, they would not provide a substantial financial incentive to return home. Furthermore, when the applicant’s asset position is considered with his employment in Australia and that he is earning a high level of income and the high levels of income that are available in Australia they present the applicant with a substantial financial incentive to remain here rather than to return home.
The applicant both in the Response and in evidence did not have any concerns about returning to Pakistan and he had no concerns about military service commitments and political and civil unrest in his home country. Accordingly, the Tribunal finds they do not present as a significant incentive for him not to return home.
The applicant in evidence confirmed that he had received some support from his family in regard to his studies and stay here in Australia. Accordingly, the Tribunal finds based on the applicant’s evidence and circumstances in his home country including his level of education and the support he has received from his family that relative to others in that country he is in a good position and it would not provide a significant incentive for him not to return home.
The applicant is currently married to his spouse and they have a child. Both the spouse and child are all secondary applicants to the applicant’s visa application. The Tribunal accepts that they have been married since 2011 and their child was born in 2014 and that their relationship is genuine. In those circumstances the Tribunal accepts they are not in a relationship of concern for a successful visa outcome.
The applicant has both personal ties here in Australia and back home in Pakistan.
The applicant gave evidence that he has his mother and 2 of his brothers back in Pakistan and that would ordinarily provide him with some incentive to return home. It does not appear that he has seen them here in person in Australia and he would have last seen them in person when he left for Australia in 2011. He claims to remain in contact on a daily basis with his mother and with his brothers every second day. He claims that the family are a close-knit family notwithstanding he has stayed away for this long period of time. He claimed in the Response that he is tied with his community back home through his family. However the Tribunal does not accept such evidence especially in circumstances where the applicant has only resided back at home for a period of 4 months continuously over the term of the last 20 years. The applicant’s ties need to be considered with his ties here to Australia including the fact that he has his spouse and daughter with him here, being his immediate family and a brother who he is working with and the higher level of wages available in this country. When one considers those ties the Tribunal considers that the applicant’s ties to Pakistan do not provide a substantial incentive for him to return home.
The applicant has very strong ties to Australia. He has his spouse and daughter here but also he has his brother here who is a citizen of this country and has been here for in excess of 12 years. The applicant’s brother owns Desi Cuisine with whom the applicant has been working since July 2021. The applicant claims that he sees his brother only once a week or once every two weeks here in Australia. However the ties are deeper than that by reason that they are working together and the applicant has worked in his business since July 2021. The applicant confirmed he is in stable accommodation having lived in his current abode for 1½ years and before that at a residence for 5½ years. Such duration of stay confirms that the applicant is in stable accommodation. The Tribunal considers that stable accommodation together with his stable employment and that he is earning a high level of income and that he is here working with his brother, demonstrate a strong incentive to remain here rather than to return home.
The applicant in his Response confirmed that he had been refused a visa to enter the United Kingdom in 2007. The applicant claimed that the visa refusal was for a visitor visa but that he was subsequently granted visitor visas to the United Kingdom and he visited there twice after the visa refusal. The applicant in evidence could not recall the exact reason for the visa refusal. In any event the Tribunal accepts by reason of the subsequent grant of the visa in Australia coupled with the fact the applicant obtained a visa to return to the United Kingdom that the reason for the visa refusal was not serious and he had received subsequent visas to return to the United Kingdom. In those circumstances the Tribunal does not consider the visa refusal adverse to the applicant’s current visa application.
The applicant has been in this country for a very long period of time and now wishes to extend his stay to complete an Advanced Diploma of Leadership & Management which will be his 11th qualification in this country at the VET level. The Tribunal considers that the purpose of this application has not been to undertake studies to improve his skills and qualifications to obtain employment but rather to extend his stay here with his family including his brother and spouse and child. The applicant has only resided in his home country for a very short period of time over the last 20 years. His conduct in the studies he has undertaken is inconsistent with the purpose of a student visa which is to come to this country and complete one’s studies in a timely manner and return home.
Based on the above matters the Tribunal is not satisfied the applicant has made this application to gain a visa to study temporarily and that it considers the primary objective of the application is to maintain an ongoing residence in this country and to remain here on a permanent basis.
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).
Further as the applicant has not met the requirements of cl 500.212 of Schedule 2 to the Regulations then the secondary applicants do not meet the requirements of cl 500.311 of Schedule 2 to the Regulations and they do not meet the criteria for the grant of a student visa.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Michael Biviano
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.

[2023] AATA 306

15 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction