Jakkula (Migration)

Jakkula (Migration) [2024] AATA 1452 (3 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Srivasthava Jakkula
CASE NUMBER:  2300015
HOME AFFAIRS REFERENCE(S):          BCC2022/3425865
MEMBER:David Thompson
DATE:3 May 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 03 May 2024 at 11:32am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No.108 – circumstances in home country – potential circumstances in Australia – value of the course – regression in level of study – immigration history – academic progress – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 15 December 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 25 August 2022. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because he was not satisfied that the applicant intended genuinely to stay in Australia temporarily.
The applicant appeared before the Tribunal on 29 September 2023 to give evidence and present arguments.
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 meets the requirements of cl 500.212.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which has replaced Direction No 69 since hearing but is in relevantly identical terms, 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.
Evidence
As well as giving oral evidence at hearing, the applicant provided the following items of documentary evidence to the Tribunal:
a.the delegate’s decision record and notification letter, both dated 15 December 2022;
b.a completed ‘Request for Student Visa Information’ form, provided in response to a request for information made by the Tribunal pursuant to s 359(2) of the Act on 2 August 2023;
c.a written statement prepared by the applicant, undated but lodged with his application for review;
d.identification pages from the applicant’s Indian passport;
e.Confirmation of Enrolment (CoE) D6085275, recording the applicant’s enrolment in a Certificate IV in Commercial Cookery scheduled to run from 10 October 2022 to 7 April 2024;
f.CoE D6086152, recording the applicant’s enrolment in a Diploma of Hospitality Management, scheduled to run from 8 April 2024 to 6 October 2024;
g.CoE EBC3D763, recording the applicant’s enrolment in a Certificate IV in Commercial Cookery scheduled to run from 2 October 2023 to 11 May 2025;
h.CoE EBC66394, recording the applicant’s enrolment in a Diploma of Hospitality Management scheduled to run from 12 May 2025 to 28 September 2025;
i.a statement of purpose prepared by the applicant, undated;
j.an email message from a student support officer at Stanley College to the applicant sent on 10 October 2023;
k.Government of Telangana Documents of Land Ownership Right, showing the applicant as the owner of land in Turkapalli and Avunoor, villages in Telangana State, India; and
l.the applicant’s mother’s death certificate, issued 23 July 2021.
Prior to constitution of this review application, the Tribunal obtained the Departmental file on the applicant’s student visa application, refusal of which provided the occasion for this review. That file contained the following relevant documents not already mentioned above:
a.the applicant’s marriage certificate, dated 10 January 2022;
b.the applicant’s and his wife’s Indian national identity cards;
c.photographs of the applicant and his wife taken at their wedding;
d.the applicant’s father’s death certificate, issued 1 August 2022; and
e.an undated statement of purpose, prepared by the applicant.
Where it proves necessary or desirable to refer to any document listed above in the course of these reasons, I use the document’s paragraph number. Thus, the document noted in paragraph 10(a) is referred to simply as ‘document 10(a)’, and so on for the other documents.
Prior to hearing, I obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). Information from that record was put to the applicant in the course of hearing, pursuant to s 359AA of the Act. I will return to that issue below. I have also reviewed and relied on the applicant’s movement record. That record largely reproduces evidence the applicant provided, either by way of document or orally at hearing. There was, therefore, no need to put any information from his movement record to him at hearing.
Consideration
Background
The following paragraphs 15 to 38 set out my findings of fact on various background matters.
The applicant is a citizen of the Republic of India. He is 32 years of age at the date of these reasons.
The applicant first arrived in Australia on 17 December 2016, as the holder of a TU-500 student visa granted on 22 September 2016 and valid until 15 March 2019.
At that time, he was enrolled in a Master of Engineering (Oil and Gas) course at the University of Western Australia. He ceased studying that course on or about 14 August 2017 and enrolled in a General English course, which he completed, and a Master of Engineering (Mechanical) at Central Queensland University.
The applicant left Australia on 15 June 2018, returning on 12 July 2018.
The applicant did not finish his Master of Engineering (Mechanical). His enrolment was cancelled on or about 12 October 2018.
The applicant then completed a further General English course, which ran from 10 December 2018 to 13 January 2019, and enrolled in a package of courses comprising:
a.Graduate Certificate in Leadership Diversity, scheduled to run from 22 April 2019 to 23 December 2019; and
b.Graduate Diploma of Strategic Leadership, scheduled to run from 13 January 2020 to 26 April 2021.
On 14 March 2019, the applicant applied for a further student visa. He was granted a further TU-500 student visa on 22 March 2019, valid until 26 June 2021.
The applicant decided not to follow the package of Leadership courses in which he had enrolled. His enrolments in those courses were cancelled on 21 August 2019.
Instead, the applicant enrolled in the following package of courses:
a.Certificate III in Commercial Cookery, initially scheduled to run from 7 October 2019 to 2 October 2020, but extended to finish on 18 December 2020;
b.Certificate IV in Commercial Cookery, originally scheduled to run from 5 October 2020 to 18 December 2020, but extended to finish on 2 July 2021; and
c.Diploma of Hospitality Management, originally scheduled to run from 5 April 2021 to 1 October 2021, but extended (twice) to finish on 1 July 2022.
The applicant completed his Certificate III in Commercial Cookery on or about 18 December 2020.
On 18 June 2021, the applicant applied again for a TU-500 student visa. He was granted another TU-500 student visa on 16 August 2021, valid until 1 September 2022.
On 16 November 2021, the applicant departed Australia. He was away for approximately 5½ months, returning on 3 May 2022.
The applicant applied for a fourth TU-500 student visa on 25 August 2022, and was granted a bridging visa while his application was being determined.
In or about August 2022 , the applicant enrolled in the following package of courses at Skills Institute Australia:
a.Certificate IV in Commercial Cookery, scheduled to run from 10 October 2022 to 7 April 2024; and
b.Diploma of Hospitality Management, scheduled to run from 8 April 2024 to 6 October 2024.
The applicant departed from Australia on 15 September 2022.
The applicant’s enrolments in the courses noted at paragraph 28 above were cancelled on 8 November 2022 for non-commencement of studies.
On 15 December 2022, the Department informed the applicant that his visa application had been refused.
The applicant returned to Australia on 1 January 2023. He lodged an application for a review of the delegate’s decision with the Tribunal on 2 January 2023.
The applicant departed from Australia on 29 April 2023.
On 25 August 2023, the Tribunal wrote to the applicant inviting him to attend a hearing on 29 September 2023.
The applicant arrived back in Australia on 29 August 2023.
On or about 21 September 2023, the applicant enrolled at Astral Skills Institute Australia in:
a.Certificate IV in Kitchen Management, scheduled to run from 2 October 2023 to 11 May 2025; and
b.Diploma of Hospitality Management, scheduled to run from 12 May 2025 to 28 September 2025.
The applicant appeared before the Tribunal for a hearing on 29 September 2023.
At the date of these reasons the applicant is no longer enrolled in the package of courses mentioned in paragraph 36 above, but is enrolled in an Advanced Diploma of Civil Construction Design, scheduled to run from 15 March 2024 to 15 March 2026.
The applicant’s circumstances in his home country
The applicant gave evidence of family in his home country. His parents are both deceased (see documents 10(l) and 11(d)), but he stated at hearing that he has a sister living in India, who has her own family. He also stated that he has a wife, having married on 8 December 2021 (see documents 11(a) to (c)). He stated at hearing that he contacted both his sister and his wife every day, by telephone or online video call. I note that the applicant’s wife was named as a secondary applicant in the applicant’s visa application, and was also refused a visa. The applicant’s wife is not a party to this review. The applicant did not give evidence of any strong community involvements, mentioning only his attendance at religious festivals in honour of his community’s goddess, Kali.
I do not consider that the presence of the applicant’s sister in India in itself gives the applicant any particularly strong incentive to return to country once he has finished his studies in Australia. I consider that presence of his wife in that country would give him a stronger incentive to return. However, there is no evidence before me as to the circumstances surrounding the applicant and his wife’s relationship or marriage, apart from the fact that she was a visa applicant. For that reason, I am not in a position to make any assessment of the strength of that incentive, beyond finding that it exists and is more than a negligible incentive. For these reasons, I find that the applicant has personal ties to his home country, but that they are such as to provide him with no strong incentive to return there when he finishes his studies.
The applicant gave evidence that his highest level of academic achievement in his home country was the completion of a Bachelor of Engineering (Mechanical) in 2014. He stated at hearing that after completing his degree, he worked part-time in a pizza shop and enrolled in a small institution to learn Auto-CAD design skills, afterwards working in that field. He has given no evidence, either oral or written, as to the precise nature or length of this employment, or the remuneration he derived from it. Given that the applicant has resided largely in Australia since his arrival in December 2016, I consider it unlikely that this employment history gives him any economic incentive to return to his home country.
The applicant gave evidence at hearing that he owns property in India, being a house in his hometown of Karimnagar and some agricultural land. The applicant had not, at the date of hearing, provided any documentary evidence of this. He was given leave to provide it after hearing, and in due course provided the documents mentioned in paragraph 10(k). Those documents satisfy me that the applicant does indeed own the properties he mentioned. I find that this circumstance amount to an economic tie that provides the applicant with an incentive to return to India at the end of his studies in Australia.
I find that the applicant has economic ties to his home country which would provide him with a good reason to return there at the end of his studies. Certainly, there is nothing in the evidence before me to suggest that the applicant has any economic reason to avoid returning to his home country.
The applicant gave evidence that he has no military service obligations to perform on his return to India, and no concerns regarding civil or political unrest in that country. There is no evidence before me to the contrary, and I accept the applicant’s statements in this regard. I find that the applicant has no reason of this kind to avoid returning to India when he finishes his studies.
I asked the applicant at hearing whether courses of the kind he was enrolled in were available in his home country. He said that there were some similar courses available, but that they were of much poorer quality than the Australian courses, did not have the same international recognition, and would not give the applicant the same exposure to multicultural and international cuisines. These are not unreasonable, although very generic, motivations for studying in Australia, but the difficulty is that the applicant has since changed courses, as noted in paragraph 38 above, and is now studying for an Advanced Diploma of Civil Construction Design. His evidence as to the availability of similar courses in India does not touch on courses of that kind. In a letter to the Tribunal received by email on 30 April 2024 (although otherwise undated), the applicant gave some explanation of his change of course, but did address this point. As part of that explanation, he expressed an intention to re-enrol in the hospitality courses he had been studying, but there is no evidence before me to indicate whether he has done so or not. As a result, I give the applicant’s evidence on the point in question very little weight.
Taking the matters discussed together, I find that the applicant’s circumstances in his home country give some support to his claim to intend genuinely to return there when he has finished his studies in Australia, but not especially strong support.
The applicant’s potential circumstances in Australia
The applicant gave evidence that he has no family in Australia, and no community ties either. There is nothing before me in evidence to the contrary, and I accept the applicant’s evidence on these points. I find that he had no personal ties in or to Australia that would provide him with any incentive to remain in this country once he has finished his studies here.
The applicant also gave evidence that he has no property in Australia. That statement is both inherently likely given the applicant’s circumstances and uncontradicted by any of the evidence before me, and I accept it. The applicant gave evidence that he has worked in a Hungry Jacks fast food restaurant since 2017 or 2018, and has risen in that time to the position of certified shift supervisor. He stated that he earns approximately $800 per week after tax. I find that this gives him an economic tie to Australia but, given the comparative cost of living in Australia as compared with India, not one sufficiently strong to provide him with any great incentive to remain in Australia once he has finished his studies.
There is no evidence before me to suggest that the applicant has entered into any relationship of concern whilst in Australia, in the sense of a relationship contracted or contrived to obtain a better visa application outcome than would otherwise be available. There is no direct evidence before me that the applicant is using the student visa system to maintain residence, or is attempting to circumvent the intentions of the Australian migration programme in any other way. That does not, of course, mean that such inferences could not be drawn (indirectly, as it were) from the evidence before me.
The applicant had resided as a student in Australia for approximately 4 ½ years before he made the visa application that gave rise to this review application. He has in that time had many opportunities to obtain first-hand practical knowledge of life, study, and work in Australia, and a consideration of his level of preparedness for coming to Australia initially will not assist me to reach my decision in this case. I asked the applicant at hearing how he had come to choose his (then) current course provider, Astral Skills Institute of Australia. His response was that he had found them online, considered the information he found on their website, and then enrolled through an agent. He explicitly stated at hearing that he had relied entirely on the provider’s website, and had not visited the provider’s premises or communicated with them in any other way. This strongly suggests that the applicant is using the student visa system to maintain residence in Australia, rather than to advance his education or training.

I find that whilst some aspects of the applicant’s circumstances in Australia provide support for his claim to intend genuinely to remain in Australia temporarily, there are also indicators to the contrary. On balance, I find that the applicant’s potential (and indeed actual) circumstances in Australia weigh against accepting his claim, although not especially strongly.
The value of the applicant’s courses for his future
The applicant came to Australia in order to study for a Master of Engineering, but has ended up undertaking a series of courses in the vocational education and training sector. Although some of these courses have been in areas quite different to engineering, he is currently studying an engineering-related course at Advanced Diploma level. I find that the applicant has regressed in level of study. This suggests that he is not genuinely or primarily present in Australia as a student, which in turn (given that he is applying for a temporary student visa) suggests that he does not intend to remain in Australia temporarily.
The applicant stated at hearing that his intention on finishing his courses (that is, the package of hospitality courses in which he was then enrolled) was to return to India and open a restaurant business. He stated that he had not made any concrete preparations to do so, but that his father-in-law had land available for the project, as well as a supermarket business. Given the length of time the applicant has been enrolled in hospitality courses, once might well expect him to be more prepared than that. However, the greater difficulty is (as mentioned above) that on 1 March 2024 the applicant’s latest enrolments in his remaining hospitality courses (Certificate IV in Kitchen Management and Diploma of Hospitality Management) were cancelled for non-commencement of studies, and that around the same time he enrolled in a Advanced Diploma of Civil Construction Design. This enrolment bears no obvious relevance to the applicant’s stated plans. This information, which was obtained from his PRISMS record, was put to the applicant by letter pursuant to s 359A of the Act on 17 April 2024. The applicant responded by email on 30 April 2024, but did not actually explain why he had failed to commence his hospitality courses, why he had taken up his current enrolment, or what relevant that enrolment had to the plans he had stated at hearing. Instead, he stated that his Kitchen Management enrolment was cancelled because he was studying both it and his Civil Construction Design course at the same time and, with work pressures, could not deal with both. He stated that he had asked his college to defer his Kitchen Management course, but that the college would not do so unless he paid his fees for the term. As he would not do so, they cancelled his enrolment. He went on to state that he had requested the college to reinstate his enrolment, and that he had resumed his studies. There is no other evidence of any such request, or that the applicant has actually resumed hospitality studies. I am not satisfied with his explanation, which is uncorroborated and is inconsistent with the dates stated in his PRISMS record.
There is no evidence before me that would allow me to conclude that the applicant’s current course (Advanced Diploma of Civil Construction Design) will have any value to him on his return to his home country, whether as to employment prospects, remuneration, or otherwise. I am therefore unable to find that the applicant’s enrolment will have any value at all to him on his return to his home country. This weighs very strongly against accepting the applicant’s claim to intend genuinely to remain temporarily in Australia as a student.
The applicant’s immigration history
The applicant gave evidence at hearing that he has never before had a visa refused, and has never had any visa issued to him cancelled. I accept these statements, there being nothing before me to contradict them. The applicant gave evidence of only one journey outside of India apart from his journeys to Australia, a stay of a few days in Dubai. This causes me to give less weight than I might otherwise to his evidence regarding refusals and cancellations. The applicant also gave evidence that he has no other Australian visa application on foot at the present. I accept that evidence.
The applicant has resided largely in Australia on a series of temporary visas and bridging visas for approximately 6 ½ years. This is a relatively long period for someone intending to remain in the country temporarily. It is relevant, before reaching the conclusion that the length of the applicant’s stay indicates an intention to remain permanently or indefinitely, to consider the use he has made of his time.
The history of the applicant’s studies in Australia is set out in paragraphs 15 to 38 above. It is apparent from that history that the only course the applicant has actually completed in Australia is his Certificate III in Commercial Cookery. The applicant addressed his lack of progress at hearing, giving evidence that the arrival of the COVID-19 pandemic, followed by his mother’s death and then, within a little under 2 years, his father’s death, had had such a deleterious effect on his mental state that he was unable to study effectively. I accept that these events would have caused the applicant severe difficulties. However, even allowing for that, I find that the applicant’s lack of progress is strongly indicative that he does not genuinely intend to remain in Australia temporarily as a student. I give this considerable weight in assessing the applicant’s immigration history.
I note also the applicant’s evidence that he had been unable to pass sufficient courses to finish either of the master’s degrees in engineering that he undertook, and that he had been granted a student visa to undertake. He explained at hearing that his move to VET level studies had been undertaken on his mother’s urging, as a platform from which to work his way back up to postgraduate-level studies. Even so, in doing so he breached one of his visa conditions (8202), which required him to remain enrolled in a course at the same Australian Qualifications Framework level as that for which the visa was granted. There is, however, no evidence before me to suggest that he has breached any other visa condition, or any other immigration law.
For these reasons, I find that the applicant’s immigration history weighs against his claim to be a genuine temporary entrant.
Conclusion on cl 500.212(a)
On the basis of the above, I am not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a). As it is necessary for the applicant to meet that requirement if he is to meet the requirements of cl 500.212 overall, there is no need to consider cl 500.212(b). As to cl 500.212(c), I find that there is no other relevant matter arising on the evidence before me requiring consideration, or that would make any difference to the conclusion I have reached regarding cl 500.212(a).
Accordingly, I am 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, I find that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
David Thompson
Member

Attachment – Direction No.108
DIRECTION NUMBER 108 - ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 21 March 2024
Clare O’Neil
Minister for Home Affairs and Cyber Security
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 - Preliminary
Name of Direction
This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 108.
Commencement
This Direction commences on 23 March 2024.
Revocation
Direction No. 69, given under section 499 of the Act, is revoked.
Interpretation
Act means the Migration Act 1958.
Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).
This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.
This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.
Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
Preamble
The Australian Government operates a student visa program that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa program must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.          the applicant's circumstances; and
b.          the applicant's immigration history; and
c.          if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and
d.          any other relevant matter
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a) to d), to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily.
Part 2 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.          considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker)
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application or Student Guardian visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant's circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant's circumstances
6.Decision makers should have regard to the applicant's circumstances in their home country and the applicant's potential circumstances in Australia.
7.For primary applicants of Student visas, decision makers should have regard to the value of the course to the applicant's future.
8.Weight should be placed on an applicant's circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant's circumstances in their home country
9.When considering the applicant's circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant's personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant's circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant's home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant's home country and the influence these may have on an applicant's motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant's circumstances in their home country relative to the circumstances of others in that country.
The applicant's potential circumstances in Australia
11.In considering the applicant's potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant's ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant's knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant's future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant's future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student's past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant's immigration history refers both to their visa and travel history.
14.When considering the applicant's immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
iii.b. Previous travels to Australia or other countries, including:
iv.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
v.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
vi.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
vii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance.
If the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant's intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2024] AATA 1452

3 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction