Jatinderpal Singh (Migration)

Jatinderpal Singh (Migration) [2023] AATA 137 (19 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Jatinderpal Singh
REPRESENTATIVE:  Ms Carina Ford
CASE NUMBER:  2210147
HOME AFFAIRS REFERENCE(S):          BCC2016/3135291
MEMBER:T. Quinn
DATE:19 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 19 January 2023 at 3:12pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit and Family Court remittal – genuine student – genuine temporary entrant – enrolment in a registered course – applicant changed to Vocational level courses – no academic progress – lengthy gap in studies – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act2000
Migration Act 1958, ss 65, 338, 347, 359, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212
CASES
Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Chen v Minister for Immigration and Border Protection [2017] FCA 46
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor, file number MLG1550/2018
Tshering v Minister for Home Affairs [2019] FCCA 2667
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 21 September 2016, the applicant applied for a Student visa (the visa) to undertake study in Australia (‘the application’).[1]
[1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the former and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 25 January 2017, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]
[2]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application
On 1 February 2017, the applicant applied to this Tribunal for a review of the delegate’s decision.[3]
[3] Pursuant to sections 338(2) and 347 of the Act.
On 10 May 2018, a Member of this Tribunal orally affirmed the delegate’s decision to refuse the applicant’s student visa and a written record of this decision was made on 6 August 2018 (‘the Tribunal’s first decision’).[4]
[4] See case number 1701734.
On 4 June 2018, the applicant applied to the Federal Circuit and Family Court of Australia (‘the FCFCA’) for a review of the Tribunal’s first decision.
On 21 August 2019, the applicant’s application to the FCFCA was dismissed as he did not attend his directions hearing. The applicant sought and was granted reinstatement of his application on 4 October 2019.
On 8 July 2022, the FCFCA, by consent, remitted the applicant’s application to this Tribunal for reconsideration because a review of the Tribunal’s first decision revealed an error of law. The error of law occurred when the Tribunal failed to accord procedural fairness to the applicant. The FCFCA found, by consent, that the Member’s conduct of the hearing in totality and looking at the evidence cumulatively created a reasonable apprehension of bias.[5]
[5]See Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor, file number MLG1550/2018.
In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed since making their original application. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information for the purposes of determining the outcome of their application for review. To this end, on 20 December 2022, the Tribunal wrote to the applicant requesting that they provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student by completing a student visa information questionnaire (‘the questionnaire’).
The applicant filed the completed questionnaire on 3 January 2023.
The applicant appeared before the Tribunal for a video hearing on 11 January 2023. The Tribunal hearing was arranged to be conducted with the assistance of an interpreter in the Punjabi and English languages, however, at the outset of the hearing the applicant requested that the hearing be conducted in English. The interpreter remained on the line and available for the duration of the hearing.
The applicant was assisted in relation to the review and their representative also attended the hearing on 11 January 2023.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
I have proceeded to a decision having regard to all the information before me, including the material and evidence provided by the applicant and his sister on the day of the hearing.
For the following reasons, the decision under review is affirmed. In reaching this decision, I have had regard to:
a.the oral evidence of the applicant given at the hearing;
b.all written material filed by or on behalf of the applicant, including post hearing submissions filed on 18 January 2023; and
c.other relevant documents on the Tribunal and Department files.
Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.[6]
[6]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].
STATUTORY FRAMEWORK
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. Information in relation to Clauses 500.211 and 500.212 is attached to this decision.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies clause 500.212(a), I must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (‘the Direction’), made under section 499 of the Act. The Direction is attached in full to this decision but broadly it requires Tribunal Members 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 Direction is a lawful direction of the Minister.[7] I am therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[8] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before me. However, I recognise that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate. In this regard, I note well established case authority as to the proper approach by decision makers to guidelines such as the Direction[9] and McNab J’s view that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.[10]
[7] In accordance with section 499 of the Act.
[8]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].
[9]Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]), Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) and Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]).
[10]Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47] per McNab J).
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant in this case is a 29-year-old male Indian citizen who first arrived in Australia on 5 May 2013.[11] He has remained onshore since that time without any travel to his home country.[12] Prior to coming to Australia, the applicant completed High School in 2012 in India.[13]
[11]See the questionnaire.
[12]Ibid.
[13]See the questionnaire and the delegate’s decision.
The applicant initially arrived in Australia to complete a Bachelor of Information Technology on a Higher Education Sector visa, however, he ceased his Bachelor course in April 2014 and, in breach of the conditions of his Higher Education Sector visa, enrolled in vocational level courses in the automotive field.[14] The applicant has made submissions that his agent lied about the Department’s approval of his downgrade in education level and also gave evidence at hearing that having never completed any study in the Higher Education sector, Bachelor level courses were too hard for him. I accept the applicant’s evidence at hearing in relation to his level of education and consider the study he is proposing is relatively consistent with his current education level.
[14]See the questionnaire.
The applicant’s application which is the subject of this review was to complete a Bachelor of Business, however, the applicant’s own evidence at hearing was that he only did one semester of this course. He has provided no corroborating evidence of any academic progress from June 2017-present and recently enrolled in a Certificate III in Heavy Commercial Vehicle Mechanic Technology (HCVMT) with course dates from January 2023-March 2024.
The applicant has provided certificates of completion for the following courses:
a.A Certificate III in Light Vehicle Mechanical Technology from October 2014-February 2016; and
b.A Certificate IV in Automotive Mechanical Diagnosis from March – August 2016.
He also gave evidence at hearing and in his response to the s359(2) letter that he had completed a Diploma of Automotive Technology from October 2016-June 2017. However, I requested he provide corroborating evidence of completion of this course (such as a completion certificate or letter from his course provider) within a week of hearing and no such corroborating evidence has been provided.
The applicant has now been onshore for nearly 10 years. This is not the sort of academic progress one would expect of a genuine student. The applicant concedes in the questionnaire that he was not even enrolled in a curse of study from January 2018-December 2022, a period of five years.
A particularly effective way for an applicant to demonstrate that they hold a genuine desire to study in Australia, while awaiting a hearing following an initial student visa refusal, is to take positive steps towards achieving the educational qualification they had proposed in their original application. That is to say, an applicant should progress with their proposed course of study in Australia notwithstanding that their visa application has been refused. In doing so, by the time the application on review proceeds to a hearing before the Tribunal, an applicant will be a position to produce compelling evidence at the hearing that shows they are a genuine applicant for a student visa. In this case, there is no such evidence. This is not the kind of behaviour one expects of a genuine applicant for entry and stay as a student in Australia. In fact, the applicant only enrolled in his current proposed course on 16 December 2022, after the hearing invitation as sent to him by the Tribunal in November 2022. The applicant has spent considerable time in Australia working but not studying whilst claiming he wishes to remain onshore as a genuine student. This evidence raises concerns about the true nature of the applicant’s intentions in applying for the student visa and, when taken as a whole with the evidence outlined in this decision, appears to constitute evidence that the applicant is using the student visa programme to circumvent the intentions of the migration programme.
The applicant has filed multiple submissions and given evidence in relation to his mental and physical health, these include:
a.Oral evidence by the applicant that he has been depressed and sad;
b.Oral evidence by the applicant that he was living with his ex-partner who he had been in a relationship with since 2016 and she lied to him and he never knew whether he could believe her, he was having issues in his relationship throughout 2018 and it ultimately ended in 2019 and she has since returned to India and married another man;
c.A hospital admission form showing the applicated was admitted to Hospital on 28 June 2019 for a broken hand, was operated on and discharged on the same day. The applicant gave oral evidence that he punched the floor in frustration about his personal circumstances and broke his own hand and that he could only use the hand properly two months after the surgery;
d.A referral dated 30 April 2018 from his General Practitioner stating that the applicant was presenting with the following problems: family issues; relationship issues; and stress related to study. The applicant gave evidence at hearing that this referral was to a psychiatrist and that he attended upon that psychiatrist only once, did not find it helpful, felt impatient and has declined in his mental health since then; and
e.An application for special consideration dated 2 November 2017 in relation to his Bachelor of Business with a university ‘special consideration medical certificate’ form completed by his General Practitioner stating that the applicant was affected from 31 October 2017-1 November 2017 and that his ’is/was not able’ t sit for exam because he had symptoms of adjustment disorder due to recent stressful event. There is no further medical evidence elaborating on this.
I empathise with the applicant in relation to his mental health and personal circumstances and have made allowance for the matters set out in paragraph 25 in coming to my conclusions in this case. However, the applicant’s application filed with the Department indicates that he commenced working as a junior motor mechanic in July 2016 and he gave evidence at hearing that he continued in that employment until 2018. Peculiarly, he did not list this employment in the questionnaire and although he gave evidence at hearing that ‘forgot’, I am concerned that he did not list this work as it is inconsistent with his submissions that his mental health and personal circumstances were so troublesome during that time that he could not study. The questionnaire does indicate the applicant has been working from September 2019-August 2020 and from October 2020-present. The applicant gave evidence at hearing that he has also suffered from haemorrhoids earlier this year and although he has sought treatment it is not getting better and that some days, he had to leave work after only two hours or four hours and that he could not work for some time when his hand was broken. He has filed post hearing submissions including a patient summary from a medical centre dated 24 July 2022 diagnosing the applicant with haemorrhoids. These submissions also reiterate that the applicant has not maintained full time employment since his visa refusal and that ‘working when experiencing depression can be easier than studying, because there is not necessarily a need to be learning new skills or retaining new information’. I do not find the applicant’s submissions in relation to working and not studying persuasive, particularly given the circumstances under which the applicant has obtained a right to reside in Australia.
Even allowing for the applicant’s submissions and evidence about his circumstances, the applicant has not made any meaningful academic progress since at least June 2017, a period of five and a half years. And he has been working for significant periods during that time. I consider that if an individual is residing onshore on the basis of an intention to study, such study should take priority over work. There are financial requirements before such visas are granted. It raises concerns about an individual’s true intentions in residing onshore if when doing so they are working but not studying, despite that right to reside being based on an outstanding student visa application in which the applicant claims to wish to study. The applicant gave evidence at hearing that these were different issues and that he could work without worrying about his mental health or getting angry, but he could not go to college in his mental state. He also gave evidence that he has not once sought help for his mental health since he saw the psychiatrist to whom he was referred in April 2018. I am very troubled by this evidence and do not find the applicant’s submissions persuasive and have serious concerns about his true intentions in seeking this student visa.
The applicant has been onshore on a bridging visa on the basis of this application for a student visa for the last six years but has not provided any evidence of completion for any courses during this time and even on his own evidence has only completed one vocational level course in that time. This is not the academic progress I would expect of a genuine student. I am concerned that the applicant is using the student visa migration program to maintain residence.

The applicant has filed evidence and submissions, including two statements from his father who runs a bus transport business, that he plans to use his Certificate III in HCVMT to work for his father as a diesel mechanic. His father claims that the applicant obtaining his proposed qualification will help his business and the qualification will be valuable. I allow for reasonable changes to study and accept that the applicant’s proposed course is relevant to and likely to assist and improve his future stated career but am concerned about whether he genuinely intends to engage with his proposed course given his academic history over the last five years. I accept that the course is relatively consistent with the applicant’s current level of education given he never completed any Higher Education sector courses. Although I raised concerns about the change in field of study by the applicant at hearing, he has made post hearing submissions in this regard and at hearing which I accept, and I have not placed weight against him in relation to changing his field of study.
I am very concerned by the length of time the applicant has been onshore for. A period of nearly ten years is very difficult to reconcile with the meaning of ‘temporary’ as required by the Act and Regulations in relation to student visas and I am concerned the applicant is using the student visa migration program to maintain residence.
The applicant is living with friends onshore.[15] The applicant states ‘N/A’ in the questionnaire in the section enquiring about his community ties to Australia. The applicant has now been living in Australia for nearly ten years and has not returned to India during that time.[16] The applicant has made post hearing submissions that he was limited by his mental health and the COVID 19 Pandemic in this regard. The length of the applicant’s stay in Australia for nearly ten years indicates that the applicant has a preference to remain onshore. It is reasonable to conclude that after nearly ten years onshore, the applicant has cultivated a satisfactory life and established strong ties to the Australian community acting as a strong incentive for him to remain onshore.
[15]See evidence at hearing.
[16]See the questionnaire.
The applicant has not returned to India at all since his arrival nearly ten years ago.[17] When asked about this at hearing, the applicant said he tried to go home but after the first three years everything got ‘messed up’ and he was sad and did not want to visit home. The COVID19 Pandemic and associated restrictions have made international travel virtually impossible from early 2020 to early 2022 and I place no weight against the applicant in relation to not travelling home during that time. The applicant has made post hearing submissions that since his periods of depression commenced after his relationship breakdown in 2017, he has been unable to travel to India. The applicant’s parents and brother live in India and he speaks to them every day and he has family in India.[18] I note the applicant’s statement that he intends to work for his father upon returning to India. I accept that the applicant has personal ties to India acting as an incentive for him to return but, taking the evidence as a whole, I do not consider those ties are acting as a significant incentive for him to return. Any incentives for the applicant to return to India appear to be outweighed by his desires and incentives to remain onshore.
[17]See the questionnaire.
[18]See the questionnaire.
The applicant states that courses in Australian institutions are international recognised, the teaching methods in Australia are more up to date and practically based and Australian qualifications are well recognised and greatly admired in India.[19] The applicant has provided reasonable reasons for undertaking his study in Australia rather than his home country or region.
[19]See the questionnaire.
The applicant has been working in Australia; as a junior motor mechanic from July 2016- some time in 2018 earning AUD800 per week (AUD41,600 per annum);[20] as a truck driver/diesel mechanic from September 2019-August 2020 earning AUD60,000 per annum; and as a truck driver from October 2020-present earning AUD63,000 per annum.[21] He has expenses onshore of AUD28,800 per annum.[22] The applicant has filed considerable evidence of his family’s assets in India which include his considerable assets worth over AUD2,000,000 equivalent in India and financial sponsorship statements from his father and cousin (who lives in the United States of America). The applicant is in line to inherit his family’s wealth, together with his brother and states that he will only inherit same if he is living in India. The applicant owns a car in Australia worth AUD5,000.[23] Taking all of the evidence cumulatively, I am concerned that the applicant’s economic circumstances are acting as a significant incentive for him to remain onshore.
[20]See page 9 of the applicant’s application form in the Department file and evidence at hearing. The applicant gave evidence that he could not remember which month in 2018 he stopped working in this role.
[21]See the questionnaire and evidence at hearing.
[22]See the questionnaire.
[23]See the questionnaire and evidence at hearing.
There is no evidence that the applicant has had any other travel, visa or immigration issues in the past save for those outlined above. The applicant does not have any potential military service obligations or political or civil unrest concerns in India.[24]
[24]See the questionnaire.
I have carefully considered all evidence and submission before me, including the post hearing submissions filed on 18 January 2023. Although I allow for the difficult health and personal circumstances the applicant has faced, I am concerned that the applicant is motivated by factors other than study and is using the student visa program as a means of maintaining residence in Australia. I am particularly concerned by the length of time he has now been onshore for and his lack of academic progress for the last five years.
Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, I am not satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant does not meet clause 500.212.
Given the above findings, 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. Therefore, the decision under review must be affirmed.

DECISION

The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
T. Quinn
Member
Attachment – Clauses 500.211 and 500.212 of Schedule 2 of the Regulations
Enrolment (clause 500.211)
·Clause 500.211 requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[25]
[25]Clause 500.211(a) of Schedule 2 to the Regulations.
·‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[26]
[26]Regulation 1.03 of the Regulations.
·All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[27] Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[28] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.
[27]Section 10 of the ESOS Act.
[28]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).
Genuine Temporary Entrant
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.
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 137

19 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Breach